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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-08-07 Daily Xml
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Budget Measures Bill 2014

Second Reading

Adjourned debate on second reading.

(Continued from 6 August 2014.)

The Hon. R.I. LUCAS (17:23): I rise to support the second reading of the Budget  Measures Bill. As has been outlined by the Leader of the Opposition in another place, and publicly, the Budget Measures Bill and the appropriation package generally includes a significant number of elements that the Liberal Party strongly opposes. As the Leader of the Opposition indicated, they certainly would not have been part of any budget that a potential Liberal government would have brought down should the election result have ended differently.

Again, as the Leader of the Opposition has indicated, areas of the budget such as the car park tax, the increase in the emergency services levy, the fun tax and, indeed, other aspects of the budget, have all been publicly opposed by the Leader of the Opposition on behalf of the Liberal Party. As he has indicated on our behalf, generally, the Liberal Party accepts the right of governments to make and implement decisions in relation to their budget packages. It has only been very rarely in South Australia's history that we in the Liberal Party have adopted a different position. In the last decade I think there have been one or two examples in relation to a biosecurity levy and the issue of court costs where budget measures have been opposed by the Liberal Party and also members of the Legislative Council as well.

By and large, whilst the parliament, I suspect, or non-government members of the parliament, may well have objected to significant aspects of the government's budgets, they have generally accepted that convention with rare exception. On this occasion, as the Leader of the Opposition has outlined, this is one further example in this budget, in our view, where there is the rare exceptional circumstance. The Leader of the Opposition, the member for Dunstan, has outlined our very strong and sustained opposition to the imposition of the car park tax, something which was campaigned on for—I am not sure exactly how long, but I am guessing—about 12 months prior to the last state election. The Leader of the Opposition has indicated in the debate in the assembly, and I do so on his and our behalf in this chamber, that we intend to proceed with our opposition to the car park tax in this Budget Measures Bill.

On my behalf, I have today filed amendments which will test the will of the Legislative Council in relation to the provisions of the Budget Measures Bill which relate to the car park tax. For the benefit of members, given that we have a five-week break ahead of us, they are in exactly the same form as the amendments that were moved by the Leader of the Opposition in the House of Assembly, which were ultimately unsuccessful.

I did note in that particular debate the irony as I viewed the transcripts of the debate of the member for West Torrens, the Treasurer, making comments in relation to 'stupid members of parliament', in his view. I noted, as I said, with a smile on my face the statements and the commentary being made by the member for West Torrens in relation to members of parliament that he believed were stupid. I would have to say that most observers would probably make the observation that the current Treasurer is not as sharp as the former treasurer, Mr Foley. Whatever one thought of Mr Foley, I think most observers would probably agree with the assessment that the current Treasurer is not as sharp as the former treasurer.

The Hon. J.S.L. Dawkins: Especially Mr Foley.

The Hon. R.I. LUCAS: I am sure that Mr Foley would take that position as well. Given the fact that Mr Foley described himself as 'not the sharpest tool in the shed', I am not sure what that says about the current Treasurer, because I looked at the argument of the Treasurer in relation to the Liberal Party's position on the car park tax and in the space of 60 seconds he directly contradicted his own argument and for the benefit of members I will just quickly outline.

He started off by saying that the Liberal Party's position of opposing the car park tax as one of the budget measures was in his view breaking years and years of precedent and years and years of convention; that is it was unheard of, unprecedented, for the opposition, for the Liberal Party, to amend a Budget Measures Bill in this way. Having argued that argument—that is, this was unprecedented—he then went on within a 60-second cycle to argue that his definition of stupidity is that:

If you do one thing and it does not work, and you continue to do it over and over and over again, and you do not change your actions, well, that is just stupid. It has been said of the Liberal Party that not only are they stupid but they are stupid often.

He then went on to say:

…you are setting a dangerous precedent by following the old through the same tactics that have failed you in the past.

The logicality of all of that I think is apparent to everyone. On the one hand, the Treasurer was arguing that this particular action on the car park tax was breaking years and years of precedent and convention and then he was saying that the Liberal Party would never learn if we do one thing and it does not work and we continue to do it over and over again. What he was arguing in essence was that this was something that we were doing over and over again and it was not some new strategy, tactic or decision.

Indeed, it is a rare position for the Liberal Party to adopt. It is different to generally the position the Liberal Party has adopted over a number of decades in relation to significant budget measures, so how the current Treasurer can rationalise in his own mind within the space of a 60-second argument directly contradicting himself on any number of occasions only he could understand and perhaps only he could seek to explain to other members.

I am going to seek leave to conclude my remarks, but I did want to place on record some questions which hopefully would allow the government and its advisers in the next five weeks to provide some information to me and to other members. The first one relates to the complex issue of the long service leave provision for teachers. I will speak at greater length on this issue when we return in September, but I have to say as a former shadow minister and minister for education through significant parts of the eighties and nineties that I agree with the government's position and the department's position on this, and I disagree with those who put a different view, in particular those from the Australian Education Union.

During that period as shadow minister and minister for education, it was always my view and understanding, based on the advice of the department—and it was also my view that contract teachers and temporary relieving teachers also knew—that in the circumstances that have been outlined they were not entitled to long service leave.

During that period, contract teachers and temporary relieving teachers were not working for a week and then having a six-month break and working for another week, and then having a six-month break and working for another week, and assuming and expecting that they were accruing long service leave. The position of the department and the Labor and Liberal governments of the time was that the legal position was that they were not entitled to accrue long service leave, so I do not accept the argument from the AEU that people during that period were working under the assumption that they were accruing long service leave.

I have not been minister or shadow minister for education for the last number of years and clearly, from about 2005-06 onwards, it was the view of the AEU, and maybe some others, that the department and previous governments had been wrong in their interpretation of the law, and therefore the law was tested. As the record shows, it was tested in the industrial court. The union lost. The government and the department were shown to be correct.

The union then protested and appealed it to the Supreme Court. Again, the union lost, and the department and the government had their position confirmed. The union, as was its right, then took it to the High Court and ultimately the union was proved correct, because in 2012 they won the decision; the department and the government lost in 2012. That set up the set of circumstances that we have now.

I do not accept the position that for 40 years temporary relieving teachers and contract teachers had been working under the understanding that they were accruing long service leave if they were in the circumstances, as I said, where they had worked for a week and then had a year off, and then worked for a week and had a year off, and worked for a week. Ultimately, the High Court has ruled differently. That is the set of circumstances we are in at the moment.

My colleagues in the assembly, on our behalf, have put a range of questions to the minister, which one would not expect the Treasurer to reply to, and he was not able to do so but, clearly, they are issues that the education department will have to address. I certainly repeat those questions; I will not go through them in exact detail again. We are looking forward to an early response to that hopefully being provided to us before the debates in the first or second week of the next sitting and not being delivered on that particular day and expecting debate to continue on that date.

In relation to those questions, a significant number of them were in relation to this $15 million ex gratia fund. My colleagues the member for Bragg and the member for Unley have asked a series of questions as to how that fund is to operate, and I repeat those questions. The minister said, 'At this stage, cabinet hasn't considered the detail.'

I think that, prior to this issue being resolved, it will be important for cabinet to have considered the detail as to how that fund is going to operate, which minister will be responsible for it and what the general nature of the criteria in terms of the ex gratia payments will be, because it will be important for members in this chamber to be aware of how that is going to operate.

It will not be sufficient, in my view, just to say, 'Cabinet hasn't worked out the detail yet.' The minister and the government will need to be able to outline to this parliament how this $15 million ex gratia fund, in general terms, is going to operate, who will be responsible for it, and, in broad terms at the very least, what the criteria might be.

The AEU are claiming that the education department has told them that the total cost of this court decision, if this amendment does not go through, will be somewhere between $100 million and $200 million. I am seeking a response from the government as to whether it is correct that that is what the department told the AEU. The minister is now saying, 'We can't say how much it will be, etc.' Clearly, someone in the education department has told the AEU that, so it is clear that someone in some section of the department has done a back-of-the-envelope calculation or whatever, and we seek greater detail in relation to that.

I do not accept the argument. Therefore, if the government wants to maintain the position that, in some way, releasing a ballpark estimate of the cost would in any way prejudice the current action in the Supreme Court on this issue, I seek from the government a summary of the legal advice which backs that argument; that is, that in some way revealing a possible ballpark estimate as broad as $100 million to $200 million on the public record would in any way jeopardise the government's position in the current Supreme Court action.

The second series of questions are really in relation to the practicality of all this. My colleagues did put some broad questions, but I want to be quite specific. If this amendment is not agreed, my understanding is that more than 40 years of records of employment in the education department will need to be accessed in some way. My questions are as follows. Where are the records of employment of temporary relieving teachers and contract teachers held going back to 1972, if that is the operative start date? Are they all still centrally held? Clearly, in the early years—and possibly even up until recent years—a lot of them would have been, I assume, manual records.

Let me give you a practical example. In some cases schools actually employ temporary relieving teachers out of funds they are provided with at the local level. So the department, up until recently, has always provided the overall staffing for schools, but schools were sometimes given grants for literacy or numeracy or special education, or whatever it might be. So they might have had $100,000 in special education grants and, through that, employed teachers at the local level to provide special education help for half a day a week, one day a week, three hours here, three hours there—at the local level. What I want to know is: where are those records kept? Are they and were they kept at the local school level? Were they all centralised? My understanding is that they were not all centralised. For example, with the many schools that have closed over the last 40 years, if they were being held at the school level, where are those records actually kept?

If this particular provision is not there then there will be a legal entitlement for everyone, or anyone, in the circumstances going back 40 years. How will the government and the department do those calculations, access the information, to in essence pay out all teachers covered by the current High Court ruling? I think that is important in terms of the practicality of implementing some alternative position to the one the government has currently outlined to the parliament.

In relation to this issue, in a quick discussion with parliamentary counsel, I have not been able to find the detail, so I will put a question to the government. Certainly people from RevenueSA, people potentially from justice or the Attorney-General’s Department or people from the education department will have access to much more detailed information than I. However, I do have a recollection that in the last decade we as a parliament have been asked to vote on legislation which as a result of a court decision meant that the government of the day (the current Labor government) asked us to retrospectively tidy up a particular issue.

As I said, I am struggling to remember the detail, whether it was in the stamp duties or the tax area as a result of an appeal in the tax area, or whether it was in relation to WorkCover when we did the 2008 WorkCover legislation. I am not sure, but I have a recollection and I seek from the government any indication where this parliament has been asked to retrospectively fix a problem that previous governments and departments never envisaged would occur but, as a result of a court decision, this parliament ultimately did agree to retrospectively tidy up a particular issue that had been created by a court decision.

Finally, in terms of questions, there are some complicated provisions regarding the new provisions in relation to royalties, but also in relation to private mines. There have been some recent changes in the ownership of mines in South Australia which might be impacted by these new provisions—the change in ownership of the Penrice mine, the announcements today in relation to Adelaide Brighton and Southern Quarries. My question to government is: how will these new provisions in the Budget Measures Bill impact, if they do, on royalty payments from the mines that are involved in both of those transactions?

I seek clarification as to what the impact might be. I guess in part that means: what is the operative date? Is there any retrospective element in relation to the provisions, or what is the operative date for the provisions in this particular legislation for royalty payments? Will they catch the recent ownership changes in relation to the Penrice transaction and the Adelaide Brighton transaction as well? With that, I seek leave to conclude my remarks.

Leave granted; debate adjourned.

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