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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-09-30 Daily Xml
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PROFESSIONAL STANDARDS (MUTUAL RECOGNITION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 September 2010.)

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Industrial Relations, Minister Assisting the Premier in Public Sector Management) (16:07): I thank the Hon. Mr Wade for his contribution to this bill. I think the Independents and minor party members of this chamber may have indicated that they support the bill. I thank them for that and I look forward to this bill's speedy passage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: By way of preface to my question, I would like to thank the government through the Attorney-General for providing a copy of a letter from the Attorney-General to Ms Jan Martin dated 23 September. In it, the Attorney-General mentions the fact, which I highlighted in my second reading speech, that New South Wales and Western Australia had removed this clause. In that letter, the Attorney-General stated:

Additionally at this stage, just two other jurisdictions have excluded this liability from their equivalent acts, and we understand that Victoria is currently conducting a review of their act. Should more jurisdictions exclude this liability from their acts, the issue could be re-examined.

In the context of the lack of consistency in what is a national uniform scheme, can the government enlighten the committee as to how the divergence emerged? Presumably, this scheme is under the stewardship of SCAG. Has the issue in relation to section 5(2)(b) and the corollary sections of other jurisdictions been a matter that SCAG has considered?

The Hon. P. HOLLOWAY: My adviser does not have any information in relation to SCAG. Of course, it could have been on the mutual recognition legislation itself. I can remember that it goes back to the first parliament I was elected in, so it is almost 20 years old, and it may have been even before that. We would have to track down the history of that, but I just make the comment that the Professional Standards Act goes back to 2004. As I said, I can well recall bills on mutual recognition that go back to the early 1990s. I am not sure whether parliamentary counsel has any history.

The Hon. S.G. WADE: Can I ask the minister to take that on notice and advise in due course? It is certainly not crucial to the passage of this legislation. However, the opposition would be interested to know how the divergence emerged. I understand that this scheme, as far as South Australia is concerned, started in 2004-06. In relation to New South Wales, I think it was the mid-90s, so it is actually a more recent occurrence. First of all, how did the divergence emerge; and, secondly, does the government propose, through SCAG, or some other government through SCAG, to try to restore national consistency, particularly in relation to what we know as section 5(2)(b)?

The Hon. P. HOLLOWAY: That is a reasonable question, and I will seek the cooperation of the Attorney to respond to the honourable member in relation to this matter.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. S.G. WADE: In consulting with stakeholders, the opposition appreciated receiving a number of pieces of information. One of them was from the South Australian Bar Association which, I should stress, supported the legislation but did have some issues that it recommended that the parliament consider. It might facilitate the committee if I read a not too lengthy (hopefully) excerpt from the letter by way of preface to the question. The Bar Association letter states:

Once a scheme is approved under the present act, it is likely that the act would be construed such that the scheme operates notwithstanding that there are interstate aspects to the circumstances giving rise to the liability limited by the act.

2.2.1 The most central situation would be where the client and the professional/tradesperson reside and work in the state, the engagement is made in a state and the work is undertaken in the state.

2.2.2 If they reside in and the engagement is made in the state, the mere fact that the work is undertaken outside the state probably would not prevent the act applying.

2.2.3 Conversely, if the professional/tradesperson resides and works in the state and the work is to be undertaken in the state, the mere fact that the client resides outside the state probably would not prevent the act applying.

2.2.4 There are various permutations possible as to the circumstances.

2.2.5 One potential construction is that the criterion for application is determined by section 30 which fixes on the person to whom the scheme applies. If that person is a member of the occupational association and the scheme has been approved by the South Australian minister under the South Australian act, the act may apply notwithstanding other geographical aspects.

2.2.6 Another potential construction is that the act applies if South Australia has the closest connection to the liability (very roughly analogous to determining the proper law of the contract).

The letter goes on to say:

Once the act has been amended by the bill, which we [the Bar Association] support, the considerations as to geographical reach may be different.

The question posed by the Bar Association refers to new section 8, as follows:

Section 8 will provide that a scheme may indicate an intention to operate only in South Australia. If it does, what will be the criteria of operation? If the scheme indicates an intention to operate in [another jurisdiction] say Victoria, what will be the criteria of operation?

The Hon. P. HOLLOWAY: Could the honourable member spell out more clearly what he means by 'criteria'? I assume he is referring to the Law Society submission.

The Hon. S.G. WADE: It is the Bar Association. I do not know whether its submission was made available to the government. Even though it uses the words 'criteria of operation' in the question, I presume it refers back to the reference in the earlier excerpt I read, which was the criterion for application. It said:

One potential construction is that the criterion for application is determined by section 30...

It is referring there to the current act, and the question was that, once the act has been amended by the bill, understanding the impact that might have on the geographical reach, what would be the criteria of operation? I am happy to have these questions taken on notice. These are part of a national uniform scheme that the opposition supports both federally and at a state level. I have one more question, which the committee may find convenient to have put on notice.

The Hon. P. HOLLOWAY: We will do that. We will again seek to provide the answer to the shadow Attorney-General, along with the other information he has previously sought and I assume is now about to seek.

The Hon. S.G. WADE: I thank the minister for his undertaking.

Clause passed.

Clauses 5 to 7 passed.

Clause 8.

The Hon. S.G. WADE: In a similar manner, the Bar Association suggests that the amendments to section 14:

...will provide further the approval and gazettal of schemes made and approved interstate for operation in South Australia and will contemplate the operation of South Australian schemes interstate if and only if they are approved by interstate ministers. Given that the act now will contemplate interstate operation only via interstate gazettal, determining whether a scheme gazetted only in South Australia operates notwithstanding some interstate elements may be changed by reason of the amendments to the act and may be more difficult to determine.

Does the government anticipate a mechanism by which gazettals interstate can be brought to the attention of South Australian citizens?

The Hon. P. HOLLOWAY: I gather that the answer to that may be in clause 5—Amendment of section 9—Public notification of schemes. That inserts the following:

If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction, the council must also publish a similar notice in the other jurisdiction in accordance with the requirements of the corresponding law of that jurisdiction that relate to the approval of a scheme prepared in that jurisdiction.

That may indicate an answer to the question. If it does not, I will refer it to the Attorney and it can perhaps be included when we respond to the other matters. If the honourable member wants to clarify it any further, I invite him to do so.

Clause passed.

Remaining clauses (9 to 16), schedule and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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