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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-04-30 Daily Xml
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RESIDENTIAL TENANCIES (MISCELLANEOUS) AMENDMENT BILL

Final Stages

Consideration in committee of the House of Assembly's message.

The Hon. G.E. GAGO: I move:

That the Legislative Council do not insist on amendment No. 2 but make the following alternative amendment in lieu thereof:

New clause, page 8, after line 9—After clause 5 insert:

5A—Amendment of section 13—Presiding and Deputy Presiding Members

Section 13—after subsection(1) insert:

(1a) Before a member of the Tribunal is appointed (or reappointed) as the Presiding Member or a Deputy Presiding Member of the Tribunal, the Minister must consult confidentially about the proposed appointment with the Law Society of South Australia.

On 21 March 2013 the government agreed to all but one of the amendments made to the bill in the Legislative Council. The bill has been returned for members to reconsider clause 5A.

Clause 5A of the bill was an amendment moved by the Hon. Mark Parnell incorporating an amendment moved by the Hon. Stephen Wade, that required the minister to consult with a panel before a member of the Residential Tenancies Tribunal is appointed or reappointed. The panel must consist of a nominee of the Law Society of South Australia, the Attorney-General, the House of Assembly, the Legislative Council and the Commissioner for Public Sector Employment.

This amendment seeks to amend clause 5A of the bill so that the minister must consult only with the Law Society of South Australia before appointing the presiding member or the deputy presiding member of the tribunal. This is considered appropriate since the presiding member and the deputy presiding member are the only tribunal members required to be legally qualified.

I encourage members to support this amendment in the interest of preventing the appointment process for tribunal members from becoming unnecessarily complex. I am advised that listing times for tribunal matters fluctuate according to the complexity, urgency and number of applications received. Currently, applications to the tribunal are being listed for hearing in a timely manner; however, as members may be aware, last year the listing time for some matters was up to 90 days. At that time the government was able, on short notice, to appoint new tribunal members to quickly clear the backlog.

Clause 5A of the bill will limit the government's capacity to manage such a backlog in the future, and I do not think that is to anyone's benefit. It is noted that the Real Estate Institute of South Australia expressed concern about the impact of clause 5A on the bill. This amendment is essential to retain that flexibility around operational requirements for the tribunal.

The Hon. S.G. WADE: As the minister rightly explained, this is, if you like, the remaining part of a two-part clause that the Hon. Mark Parnell raised. The opposition did not support, and nor did the chamber, the proposal to treat tribunal members like judicial officers and give them security of tenure to the age of 65.

However, the opposition was sympathetic to the concerns the Hon. Mark Parnell raised in terms of lack of transparency in the process of appointments to the tribunal. I then, on behalf of the opposition, moved an amendment, which was supported by the committee, to retain that portion. What the government has done in response is to come back with an alternative amendment.

The Hon. Mark Parnell's concern, in terms of the transparency of the process, in our view, is well founded. This government, over the last decade, has a well established pattern of making appointments both to tribunals and other bodies that lack transparency. This council very resolutely stood for the independence and transparency of the process in relation to the ICAC commissioner last December, and I think that was another reflection of this council's ongoing concern for transparency in appointment processes, so it was hardly surprising that the council was inclined to support that element of the Hon. Mark Parnell's amendment.

Personally, I do not find valid the government's justification for the opposition to the proposed clause 5A, in terms of it being overly time consuming in a situation where the government needs to rapidly appoint tribunal members to clear a backlog.

This state, under this government, has endured court and tribunal backlogs year after year. We do not suddenly appoint Supreme Court or District Court judges and tribunal members to handle short-term fluctuations; the government's response is to grin and bear it. So, in the 10 years that we are dealing with backlogs, perhaps it would not be too much to go through the panel process suggested by the Hon. Mark Parnell. It would be fair to say that the opposition is attracted to the issue; in other words, we want to promote transparency in appointment processes. We were not wedded to the model the Hon. Mark Parnell submitted.

The government has provided an alternative, a compromise. It is a very limited compromise. First of all, it withdraws from all tribunal appointments other than that of the presiding member and the deputy presiding member, and it only requires consultation with the Law Society. Nonetheless, the opposition believes that the compromise amendment is an improvement on the original bill.

We commend the Hon. Mark Parnell for raising the issue before the council, and the opposition indicates that, while recognising it is a limited attempt to address the issues raised, we will be supporting the government's alternative amendment.

The Hon. M. PARNELL: I would like to ask a couple of questions of the minister before I move on to our position. I want to ask the minister about the number of people affected by the government's version of this amendment and by my version. By that, I mean that we know there is only one presiding member; how many deputy presiding members and total members are there on the Residential Tenancies Tribunal?

The context is that my amendment picks up the appointment or reappointment of all members, whereas the government's amended provision only refers to the presiding member or a deputy presiding member. How many fall into each of those categories?

The Hon. G.E. GAGO: I have been advised that there is currently one presiding member and, we believe, one deputy presiding member. In total, there around 13 members, including both the presiding member and deputy presiding member, so there are about 11 other members.

The Hon. M. PARNELL: I thank the minister for her answer, and it draws our attention to the fact that the vast bulk of the work of this tribunal will be undertaken by members who will no longer fall within the ambit of the provision I first moved in terms of a new clause 5A. So, only two out of 13 will have any form of formal vetting process at all, and the only formal action the minister need take, other than choosing the person him or herself, is that a confidential discussion takes place with the Law Society of South Australia. I think that is an unsatisfactory way to proceed.

As the Hon. Stephen Wade pointed out, this clause in many ways is a proxy for a much larger debate about the way the government handles important appointments to statutory bodies and, in particular, statutory bodies of a judicial or quasi-judicial nature that affect the rights and responsibilities of individuals.

The minister makes the point that the procedure that I had put forward, which involved a range of people who needed to be consulted, was unnecessarily complex. Well, it is certainly more complex than the present system, which is that ministers pick mates. They pick mates to take these jobs. No application process, no interview process; the minister picks a mate to take an important statutory role. That is what I am trying to overcome with this amendment.

The minister referred to the difficulties with the listing of cases and backlogs of cases that can arise, and she mentioned that the backlog got up to 90 days. The question, I think, for this council is, why should administrative incompetence in the running of a statutory tribunal be remedied by the appointment of mates to do the jobs of work that might help relieve that backlog? I think it is no answer to say that we quickly need to fill positions in order to relieve backlogs, because, as the Hon. Stephen Wade pointed out, that is not the position that has been taken in the courts at any level. They do not just rush out and say, 'We are having a busy week; let's find another judge.' Certainly, these things can be managed and can be managed properly, and that includes managing them in a way that the appointments to these most important positions go through some formal process.

I do not support the government's alternative amendment, and I would urge the council to continue to support the original amendment, which provided that all these decision-making jobs go through at least some minor statutory process; that is, before a person is appointed or reappointed, the minister is to consult confidentially with a nominee of the Law Society, a nominee of the Attorney-General, parliamentary representatives as well as the Commissioner for Public Sector Employment. It is not such a difficult group of people, and you do not even need to get them all together in the one spot. There is certainly nothing to prevent either house of parliament in advance appointing the persons to fill those roles. There is no reason why the process envisaged in my clause 5A could not be undertaken in a matter of days.

It is never going to be a situation where it is a life or death matter that a mate be appointed immediately to fill an important job of work. So, whilst this particular motion only relates to this one tribunal, really what members should be thinking about is the whole range of statutory appointments that are made under legislation and whether it is appropriate for those positions to effectively be the spoils of war, the plaything of the government in office where they can appoint people without going through any Public Service process and without going through an application or interview process. I think that is a very poor way to administer legislation in this state, and I will be urging all members to continue to support the original amendment.

The Hon. G.E. GAGO: I just have to get to my feet and make a comment on some of these outrageous assertions. The reason that it is only the presiding and deputy presiding members that are required to be consulted is because they are the only two that are required to have a legal qualification. In relation to 'jobs for mates', it is just outrageous—absolutely, absolutely outrageous. It is a combination process that is used and has been used by the former Liberal government, and after all, we took over the staff that they appointed when we got into government—their so-called 'mates'. It is outrageous. It is an outrageous allegation.

A number of processes are used, and it is a combination of both advertising positions and also making appointments. I know that ministers think and put a great deal of diligence into the selection of these most important positions and they take those responsibilities very seriously. All those people who have been appointed have been extremely competent and highly qualified people, and I would challenge either the Hon. Ann Bressington or the Hon. Mark Parnell to name one—just name one—either now or historically who was not highly qualified and highly competent and conducted themselves in an extremely high calibre way in their office. I challenge them to name one who was not an extremely competent, qualified officer and who did not operate with the highest integrity at all time. Our tribunal has a longstanding history of attracting very high calibre people.

The main premise behind the amendment we have put forward is that of flexibility. This is all about flexibility and being able to ensure we have in place processes that enable us to respond in a timely and highly flexible way. It is interesting to note that the Greens, along with the former Democrats, will never have to worry about managing and administering these statutory offices. They can sit there and espouse all sorts of theoretical and high notions of how these offices should be managed. They have never run one of these offices and they never will.

The CHAIR: The Hon. Mr Lucas.

The Hon. T.A. Franks: Does the minister actually talk to the Tasmanian ministers at COAGs or what happens—they just pretend the Greens don't exist there?

The CHAIR: The Hon. Mr Lucas, you are starting to sound like the Hon. Ms Franks. The Hon. Mr Lucas has the call.

The Hon. R.I. LUCAS: I did not intend to participate in the debate, but the minister's outrageous and inflammatory comments during the committee stage have prompted a brief response from me. As I understood her comments, she was challenging anyone to stand up in the chamber and name particular officers. Some two or three years ago—I will check the record and I am happy to send a copy—I named Ms Karen Hannon and her connections to the Labor Party and to the minister. I asked a series of questions of the minister, and for two or three years she has refused to respond to the questions. I am delighted that the minister has issued that particular challenge, because let me issue the challenge to her. The record of my questions are on the Hansard. I am happy to forward another copy to the minister if she wishes.

I named the particular officer and her association with the minister and the claims that were made at the time, and this minister has, for a period of a couple of years or so, steadfastly refused to respond to those particular questions. I invite the minister, given the claims she has just made, to stand up in this chamber during this particular debate and respond to the questions I put to the minister at that particular time.

The Hon. G.E. GAGO: I again throw open the challenge: if there is anyone in this chamber who believes that any of these appointments were not people of the highest calibre, highest qualification and highly competent people to get to their feet and name them, and no-one has stood to the challenge.

The Hon. R.I. Lucas: I just did.

The Hon. G.E. Gago: That is not what you said.

The CHAIR: The Hon. Ms Franks.

Members interjecting:

The CHAIR: Order!

The Hon. G.E. Gago interjecting:

The Hon. J.S.L. DAWKINS: On a point of order, the minister is defying your call.

The CHAIR: As are members of the opposition, and you can join them. We could challenge everyone to make their nominations outside of this place, outside of parliamentary privilege. The Hon. Ms Franks had the call.

The Hon. T.A. FRANKS: In response to the minister's comments, I ask: what does the minister do when she meets with the ministers of the Greens-Labor government in Tasmania, minister Nick McKim and minister Cassy O'Connor? Does she ignore their existence or does she accept that the Greens do have ministers this government works with?

The Hon. G.E. GAGO: We consult is the answer. I have a question for the Hon. Mark Parnell in relation to his amendment: how would that work if the five members do not agree?

The Hon. M. PARNELL: I am happy to answer the question: because it is not a decision-making body. What it says clearly in the amendment is that before a person is appointed or reappointed a member of the tribunal, the minister must consult confidentially about the proposed appointment with a panel.

I did say before they did not necessarily all have to be in the same place, but perhaps they do if it is a panel, so I will just correct the record there. But it certainly does not say 'and the minister must do what that panel says'; it just says 'consult confidentially'. So, having ascertained the views of those people, the minister can then make a choice, including the appointment of a mate if they want to.

The Hon. G.E. GAGO: The question still remains, though: what if they do not agree?

Members interjecting:

The CHAIR: The minister decides. That is the point.

The Hon. G.E. GAGO: What is the point?

The Hon. S.G. WADE: Considering that the government's clause contains exactly the same phrase, could I ask the minister: what happens when the minister consults confidentially about the proposed appointment of the Law Society and they do not agree?

The Hon. G.E. GAGO: They are legally qualified, so that is the difference.

Members interjecting:

The CHAIR: You are missing the point though. My understanding is that the amendments are there for the consultation, but finally the decision rests with the minister.

The Hon. M. PARNELL: Thank you, Mr Chair.

The CHAIR: As you should.

The Hon. M. PARNELL: You are clearly on top of this legislation.

Members interjecting:

The CHAIR: Order!

The Hon. M. PARNELL: I guess the point that comes out of this exchange in committee is that, whilst the ultimate decision does rest with the minister, it is a principle. You are putting some checks and balances into legislation that effectively make it harder for the minister to make really bad decisions because it would be a very brave minister who, having consulted under my model with a range of people, then went against their recommendations.

Similarly, under the minister's own model, if consulting the Law Society and the Law Society said, 'Minister, you've got to be joking. This person is quite inappropriate to be appointed,' I think it would be a brave minister to proceed regardless. Nevertheless, legally they have the power to do that, so what we are doing in legislation is we are making it harder for ministers to make bad decisions, and I think that makes for good law.

I will make one other point. The minister said as justification for her amendment that the only two people who need to be consulted are the presiding member and the deputy presiding member because they are the only people who need to be legally qualified. My point is: there are 11 others who have to make legal decisions every single day whether they are legally qualified or not. Their job is to apply the Residential Tenancies Act. Whether they are lawyers or psychiatrists or someone else, they still need to be able to understand legislation and to be aware of precedents including the decisions of appeal courts.

So, whilst they might not technically need to be legally qualified, in some ways there is even more reason for having legally qualified people vetting them so that these non-lawyers are at least adjudged to be capable of making legal decisions because that is the job that has been given to them when they are appointed as a member of the Residential Tenancies Tribunal.

Motion carried.

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