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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-09-18 Daily Xml
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Bills

Budget Measures Bill 2014

Second Reading

Adjourned debate on second reading.

(Continued from 16 September 2014.)

The Hon. T.A. FRANKS (15:26): I rise today as the second speaker for the Greens, and the final speaker for the Greens those of you who might be counting will notice, to address the Budget Measures Bill. Given that my leader has presented the full Green’s response to the overall bill, I will only focus on the area that I will be seeking to amend. The Greens will be calling for the protection and support of workplace rights of temporary and contract teachers, and we ask this council to consider those rights of our very hard-working and long-serving teachers when voting on this bill.

Should this bill pass in its current form, temporary and contract teachers may well find themselves in a truly concerning situation. Under Schedule 3—Other Budget Measures. Part 1— Amendment of Education Act 1972, this government is proposing to retrospectively reduce contract teachers’ statutory right to long service leave entitlements. These entitlements have been established by the highest court in this country, the High Court of Australia, in AEU v DECS case of 2012. The clause, if passed, will retrospectively reduce contract teachers’ statutory right to long service leave. This is completely unacceptable and the Greens strongly oppose this move, which we are surprised to see come from a Labor state government, a Labor government that claims to support working South Australians and yet is here undermining their statutory entitlements and defying the High Court in that bid.

This move by the Weatherill government follows similar attempts made by former treasurer Kevin Foley under the then Rann Labor government to reduce all public sector workers’ long service leave entitlements. The AEU, the Australian Education Union of South Australia, took this matter to the highest court in the country in 2012, when it was ruled that temporary or contract teachers had the same rights to long service leave entitlements as permanent teachers, as they were deemed to be officers of the education service.

The High Court there ruled that the minister was unauthorised to appoint temporary teachers under section 9(4) of the Education Act 1972 as the subsection 9(4) was repealed in 2007 and replaced by section 101B(1). The High Court of Australia papers in AEU v DECS [2012] HCA 3 29 February 2012 raised the question that I now quote:

Did section 9(4) of the Education Act 1972 at the time that it was in force, authorise the Minister to appoint officers to be engaged as teachers, or did section 15 of the Act provide exclusively for the appointment of teachers?

The court ruled:

Section 9(4) of the Education Act 1972 at the time that it was in force did not authorise the Minister to appoint officers to be engaged as teachers and section 15 of the Act provided exclusively for the appointment of teachers.

This question was raised because the long service leave entitlements of officers and employees appointed under section 9(4) were less favourable than the entitlements enjoyed by officers of the teaching service appointed under section 15.

For instance, under section 15, officers of the teaching service can break their service by up to two years and accrue long service leave for days worked, whereas prior to the High Court decision contract teachers had only three months under repealed subsection 9(4).

The disputed question of whether or not it is open to the minister to appoint persons as teachers under subsection 9(4), noting that this subsection was repealed in 2007 as it was replaced by section 101B(1) of the act, is valid. The then vice president of the South Australian branch of the Australian Education Union wrote to the then minister responsible for the act in May 2003 concerned about the minister's appointment of contract teachers under section 9(4) of the act.

On 21 February 2005, the director of human resources and industrial relations services at the Department of Education wrote to the union advising that in future contract teachers would be known as temporary teachers, and temporary relieving teachers would be appointed under section 15 of the act on a temporary basis.

Here, the department acknowledged the union's concerns and changed its practice and appointed temporary teachers under section 15 of the Education Act. We know that since 2005 the teachers union and the department have been in dispute over the appointment of temporary and contract teachers, leading to the High Court case in 2012 where, as I said, that case was found in favour of the Australian Education Union and on behalf of those members.

This proposed legislative change in this government's Budget Measures Bill is an attack on a union's win for teachers who deserve their right to long service leave entitlements. The Greens stand proudly today with the union movement and with the teachers in calling on this Labor government to remove this retrospective attack on workers' rights. The category of teachers who will lose out because of the Weatherill government's long service leave amendment and attack include:

women who, employed before 1986, had to resign because they were taking time off for childbirth and child rearing and therefore broke their service for a period of longer than three months;

current contract teachers who have taken leave of longer than three months because they did not know of the maternity leave provisions; and

anyone who has ever been on contract as a teacher and who, for whatever reason, has had a break in service of longer than three months and less than two years.

That is, those who do not have secure employment—predominantly women who have had a break, often for child-rearing and family responsibilities—will be the ones who are discriminated against in this Budget Measures Bill, and they are already amongst the most vulnerable employees in the workforce.

I would like now to address some of the remarks made by others in regard to this amendment I seek to make to the bill. It is the Australian Education Union's strong view that DECD and the government were aware that temporary teachers should, arguably, have been employed under section 15 of the act as officers of the teaching service, yet they persisted in questionable employment practices to deny that entitlement, despite the repeated protestations of the union.

There were remarks made about how the teachers' long service leave entitlements would be calculated. I have been advised that if teachers worked only the quoted 'one week per year', any long service leave entitlements would be minimal, as they are of course accrued on a days worked pro rata basis. I certainly agree with the Australian Education Union that that particular line of argument against the Greens' amendment and against the Australian Education Union's plea is a furphy.

The Attorney-General stated to the Australian Education Union that the estimated cost of the High Court decision would be (and he was quoted by the education union as saying this to them) $100 million to $200 million to ensure that contract and temporary teachers were provided their long service leave; however, the Attorney has not demonstrated how that costing was calculated.

The Australian Education Union believes that all records of temporary relieving teachers (TRT) days worked are centralised. TRT days do not attract long service leave but do trigger continuity of service for long service leave accrual for temporary contract work undertaken. Before I conclude my remarks, I would like to go to some of the questions the teachers union would like answered by the government in this debate. The questions are:

Why did the government seek to subvert the High Court decision by retrospectively altering employees' longstanding entitlements to long service leave?

Why does the government seek to differentiate between permanent and non-permanent teachers? They are both classified as the 'officers of the teaching service' under the Education Act 1972?

Why equate these members of the teaching profession with 'other public sector employees'?

Which of those current employees whose long service leave entitlements will be reduced and possibly removed by this retrospective legislation?

What information does the government have about the numbers of those particular teachers and indeed other demographic data?

My understanding from what I have been told by the union is that many of these are not only, as I have said, women (and that is unsurprising given the teaching profession) but indeed older women nearing retirement age, many of whom in fact who have had their superannuation significantly depleted as a result of the global financial crisis impact, and many of whom I understand are in fact continuing to teach, even though they would like to now be entering retirement. They are doing so because financially they cannot afford to do otherwise.

In conclusion, I reiterate: this is a retrospective attack on teachers' long-service leave. These entitlements are duly earned by those teachers and this attack by a Labor government is unacceptable and inappropriate. This government claims to support South Australian workers and yet here it is in this Budget Measures Bill attacking those workers.

Furthermore, I thank the Hon. John Darley and the Hon. Kelly Vincent in their contributions so far for their support and I look forward to further debating this amendment by the Greens to stand up for the workers and the teachers who this Labor Weatherill government is attacking in this Budget Measures Bill. With that, I look forward to the second reading debate and the committee stage.

The Hon. T.J. STEPHENS (15:36): I acknowledge that the opposition supports the bill; however, just not in its current form. It is my understanding that amendments will be introduced at a later stage, and it is the reasoning for those amendments that I largely wish to talk about now. Whilst it is somewhat unusual for this place to recommend amendments to a budget-related bill, we believe our position to be justified, and many of those reasons have been outlined by my colleagues in both this place and the other place, in particular, the Hon. Robert Lucas.

Part of the bill I refer to is that which concerns the so-called car park tax, euphemistically labelled the Transport Development Levy, to be charged on every car park in the city via the landholders and to be passed on to the consumer, which is of course every single South Australian travelling to the CBD by car. For the government to say that this will not adversely affect business in the CBD is simply outrageous. All major industry groups are against this tax: Business SA joined the Property Council, Rundle Mall Management Authority, the Real Estate Institute, the Urban Development Institute and the LGA. The Premier's hand-picked citizens' jury is even against it.

Why would a government introduce a measure that is deeply unpopular? The reason is because they are desperate and they are financially inept, as I and many other honourable members on this side have talked about ad nauseam. The debt and budget have reached crisis point, the government's spending is out of control, and now they have to raise revenue in any way possible to bring it back to a sustainable position. This is such a ridiculous and ad hoc way of governing and managing finances, it is embarrassing. If the people only knew the extent of the mismanagement, would those honourable members be sitting on the other side of the council?

The introduction of this tax runs contrary to the government's message and platform to revitalise the CBD. On one hand they say, 'Come into the CBD. We want to encourage a more vibrant nightlife. We want more people living in the city, but we will charge you $750 a year to do so.' It is a bit rich, which is what you will have to be to live in a vibrant, revitalised Adelaide, apparently. This tax actually acts as a deterrent to city patronage.

The rhetoric from the government is that the money raised will be used to improve public transport to and from the city. Well, if that is true, why is only 8 per cent of money raised going to public transport projects, with the remainder going into consolidated revenue? It is nothing short of a con job. To conclude, I encourage members to support the second reading and to support the wise amendments of the Hon. Robert Lucas. This is another example of Labor governments who have been trying to make people equally poor for decades.

The Hon. K.J. MAHER (15:39): I rise to speak in favour of the Budget Measures Bill, surprisingly. Many members have already spoken on this bill at length in this place and I do not intend on going over all the points many members have already made. That said, I would like to put on the record my support for this bill and talk a little bit about one area that has not been talked about to a great extent: the Seniors Housing Grant, which forms part of the budget measures.

The Hon. J.S.L. Dawkins: Ha! You blokes are usually singing off the same hymn sheet.

The PRESIDENT: Order!

The Hon. T.J. Stephens: Where did you get that original thought from?

The PRESIDENT: The Hon. Mr Maher has the floor.

The Hon. K.J. MAHER: Thank you for the protection, Mr President; I am being flogged with a wet lettuce by a couple of the members opposite. The Seniors Housing Grant is a policy this government took to the last election, and it was warmly received by the electorate as good policy. At the time of the last election, the government announced that we would introduce an $8,500 grant for people over 60 years of age who need to reassess and change the type of housing they reside in in their retirement. For many South Australians reaching retirement the type of housing they currently live in is not appropriate for their needs. This policy relates to the purchase of a new, age-appropriate home for older South Australians.

This government is committed to seeing through this good public policy. I understand that the community has made it clear to the government that stamp duty costs create a barrier for many older South Australians when changing their particular type of housing to a more appropriate home that suits them. This is a government that listens to the community, and that is why we have committed to these positive, well thought out reforms for seniors' housing. This policy change provides choice and opportunities for many older South Australians that will ensure they maximise their quality of life in retirement.

The Seniors Housing Grant will reduce the relative impact on older South Australians seeking appropriate housing for their retirement, housing that better meets their needs. This grant will apply to contracts people enter into for the purchase of new homes between 1 July 2014 and 30 June 2016. It will also apply to owner-builders, where the construction of the new residence commenced on or after 1 July 2014 and before 30 June 2016.

The Seniors Housing Grant will be made available to all natural people who are over the age of 60 who choose to purchase or build a new home that will be their principal place of residence for a continuous period of at least six months. This needs to commence within 12 months after the completion of the transactions. This grant has been well received by many older South Australians. The Council on the Ageing, the national peak body representing the rights, needs and interests of older Australians, has come out and lent its support for the Seniors Housing Grant. It would be worthwhile reading from a release—

Members interjecting:

The PRESIDENT: It is totally inappropriate to take photos in the chamber.

The Hon. K.J. MAHER: I fear, Mr President, the honourable minister is being—

Members interjecting:

The Hon. K.J. MAHER: I would have accused the member opposite of very cleverly setting up the honourable member, but I do not give him enough credit for such a ploy; and, in any event, he is now part of our team, having eaten his Golden North ice cream before the winter break. It is worth reading the Council for the Ageing's thoughts on this policy initiative. Their release states:

Provision of an $8,500 grant to people aged over 60 years who want to right-size their principal residence and purchase a new-age friendly home.

The budget introduces $8,500 grant for those over 60 to move from their principal place of residence and purchase a new home that is age-friendly. The grant is for new homes that meet eligibility criteria, where contracts are entered into between 1 July 2014 and 30 June 2016…

This initiative totals $14 million over two years and meets an election commitment of the government.

COTA SA—

that is the Council for the Ageing—

welcomes this initiative. It addresses COTA SA's election platform, Equal Citizens, proposal to:

Consider innovative options around stamp duty that will allow older people to downsize, ie to move to more appropriate homes.

COTA SA encourages the state government to give consideration to further initiatives that deliver affordable and appropriate housing to older South Australians—and in particular those within the private rental market who not only face significant rental costs but are often in accommodation that is not appropriate for their needs.

This is a well thought out initiative that was promised before the election, and it is being delivered by the government. While we are talking about statements of COTA about budgets and funding I do note that, like many groups, the Council on the Ageing has talked about the federal budget and the massive impact that that is going to have on South Australians. They have said that the health funding was severely curtailed in the federal budget.

I note many financial measures that are being looked at by this government are a direct result of the federal government's draconian cuts in their budget. It has come out many times in the Legislative Council's Budget and Finance Committee. I think the Liberal Party has been embarrassed by the number of times that state government departments have been highlighting the effects of the federal budget on the South Australian economy.

The Hon. D.W. Ridgway: Nowhere near as big an effect as your government has had on the South Australian economy.

The Hon. K.J. MAHER: The Hon. David Ridgway interjects about the effect of budget cuts and I notice most Liberals have been very timid, very embarrassed, by their federal colleagues' cuts in the federal budget and all they have to talk about—

Members interjecting:

The Hon. K.J. MAHER: All they've got to talk about is—

The Hon. T.J. Stephens interjecting:

The PRESIDENT: The honourable member, sit down.

The Hon. K.J. MAHER: He shouldn't be standing; he's been here long enough to know that he shouldn't be standing up and interjecting.

The PRESIDENT: The Hon. Mr Stephens. If you were in the same position as the Hon. Mr Maher and you were being interjected on to such an extent where we could not hear your answer, I would protect your interests and your rights. Please accept the same for the Hon. Mr Maher.

The Hon. T.J. Stephens interjecting:

The PRESIDENT: I am not debating this with you; I am telling you. Allow Mr Maher to continue and finish his speech.

The Hon. K.J. MAHER: We were discussing the federal Liberals trying to destroy South Australia with their draconian federal budget cuts.

The Hon. J.S.L. DAWKINS: Point of order.

The PRESIDENT: Point of order by Mr Dawkins.

The Hon. J.S.L. DAWKINS: My understanding is that this debate is around the Budget Measures Bill, which is a South Australian bill and not a bill in the federal parliament, Mr President—

The Hon. G.E. Gago interjecting:

The Hon. J.S.L. DAWKINS: —and I am on my feet taking a point of order—

The Hon. G.E. Gago: They're directly related.

The Hon. J.S.L. DAWKINS: So when did we have a debate on points of order, Mr President?

The PRESIDENT: There is no debate. Your point of order is noted. The Hon. Mr Maher, will you please continue your speech? I am sure it is relevant.

The Hon. K.J. MAHER: I take the point of order, and I can understand why the Liberal Party would want to silence me and shut me down on talking about federal budget cuts. Although they will not admit it, they are all embarrassed. We heard what they have done about it. We heard the Hon. Rob Lucas. He has written one single little letter apparently. That is how they have stood up for South Australia—one letter—but I can understand it.

I will not dwell on it, because I can understand the Hon. John Dawkins, your embarrassment over your federal colleagues' huge cuts to South Australia, and I can understand why you would want to silence me on that. I will conclude my remarks on this bill now but, rest assured, I will stand up for South Australia and address this point at a later date.

The Hon. T.J. Stephens: Oh, Mr President, he is intimidating isn't he!

The PRESIDENT: The only one who is intimidating at the moment Mr Stephens is you, so can you please refrain from speaking loudly in the chamber when you are not on your feet. The honourable minister.

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (15:47): I don't believe that there are any further second reading contributions so at this point I would like to take this opportunity to make a few concluding summary remarks and also to put on record some answers to some of the questions that were raised during second reading contributions.

The Budget Measures Bill 2014 brings into effect a number of key measures announced in the 2014-15 state budget, including senior housing grants for people 60 years of age and over who want to purchase an eligible new home to live in that might better suit their needs.

The bill also provides for the introduction of the transport development levy as well as including an amendment to the Passenger Transport Act to make it a requirement that venue managers need to give six months' notification to the Department of Planning, Transport and Infrastructure that they will be holding an event within metropolitan Adelaide attracting 5,000 or more people who require special public transport services.

This will allow for proper planning to reduce road congestion, air and noise pollution and minimise disruption to everyday public transport services. The amendments will also create a mechanism to ensure that venue managers of commercial events contribute a negotiated fee towards the cost of providing transport services for an event.

Amendments to the Mining Act 1971 will increase the consolidated revenue component of the royalty rate for extractive and mineral producers and require proprietors and operators of private mines to pay royalties on all minerals recovered from the mine upon the first change to the owner or operator of a mine from 19 June 2014. It should be noted that private mines currently pay royalties for the recovery of extractive minerals.

The bill also seeks to retrospectively extinguish the two-year rule for temporary teachers, bringing long service leave accruals for temporary teachers in line with other public sector employees. I am advised that this provision will not cause a reduction to long service leave and retention leave entitlements that are currently recorded on fortnightly pay slips.

The Hon. Rob Lucas asked a series of questions during his second reading contributions, which related to amendments to the Education Act 1972. He also sought answers to questions raised by the deputy leader in the House of Assembly. The Attorney-General has provided a written response to the questions asked to both the shadow treasurer and the deputy leader in the other place. For the benefit of members in this place, I will now seek to read these answers into Hansard.

There was a question on the modelling and assessment of the state's potential liability. I am advised that the office of human resources and workforce development, in consultation with finance in DECD, prepared estimates of the potential liability, based on a number of alternative assumptions. These estimates are broadly based for reasons, including that the precise number of potential claimants is presently unknown. The Department of Treasury and Finance has noted that the estimates are prepared by DECD.

The Hon. Rob Lucas asked about what the potential liability might be. I am advised that, given the unknown number of potential claimants, the fact that the liability has potentially been accruing over 42 years since the commencement of the act, the exact figure is unknown. It is clear, however, that, given the factors mentioned above, the potential liability is obviously extremely large. In calculating potential liability, DECD has assessed the entire spectrum of potential liability. It is not appropriate at this stage to publicly disclose potential liability figures, given the state of the proceedings in the Supreme Court, which are continuing.

The Hon. Rob Lucas asked questions around the details of the ex gratia scheme. I am advised that cabinet has approved the establishment of an ex gratia scheme (the scheme). At this stage, the details of the scheme have not been put to cabinet as it is dependent on the passage of this bill. While I cannot provide the details of the scheme prior to them being approved by cabinet, I can say that $15 million has been approved for the scheme and will be available for discretionary payments to eligible teachers.

The scheme will not be used to pay any legal costs associated with proceedings. The fund will be controlled by DTF and it is expected that DECD will review applications and provide relevant information to the Attorney-General to exercise discretion as to who will receive any payment out of the fund. Following approval, the Department of Treasury and Finance will release the funds necessary to make those payments. All eligible temporary teachers will be able to apply for payments out of the fund.

There was a question in relation to storage of employment records of the relevant teachers. I am advised that most records are available in the DECD central office. Other records are archived in boxes off site. For teachers who combined their service with lecturing in TAFE, some records are in the department of further education, employment, science and technology (now DSD).

In relation to calculations in order to pay out all teachers, payments from the ex gratia fund will be entirely discretionary. Applicants will be able to submit information and documents in support of any application. It is anticipated that DECD will provide to the Attorney-General information about the service history of claimants, and I am advised that calculations would be largely manual.

With regard to a question in relation to examples of parliament retrospectively correcting an anomaly, I am advised that in 1991 the government amended the act to reflect a practice and understanding as to payment when teachers were engaged for a part day. This was following a civil claim that resulted in a judgement that granted a full day's pay for any engagement for a part day. This prompted the Education (Part-Time Remuneration) Amendment Act 1991 (SA), which inserted a new section 101A into the act with retrospective application.

In relation to questions asked relating to royalties and private mines, I am advised that the key recent transaction that will be affected by these provisions in relation to private mines is the sale of the Penrice private mine to Adelaide Brighton, which was completed on 30 July 2014. This transaction will qualify as a relevant event under the provisions in the Budget Measures Bill, and Adelaide Brighton will be required to pay royalties on the industrial minerals mined at that private mine from the date the mine transferred ownership. The Penrice mine also produces extractive minerals, and royalties will continue to be due from these mining activities, which have occurred, apparently, historically as well.

In relation to the other Adelaide Brighton transaction announced in early August, that is, its acquisition of the Direct Mix Concrete/Southern Quarries, apart from the extractive minerals royalty increase there is a small private mine lease that produces industrial minerals (estimated to be less than $2,000 of royalty a year) that Adelaide Brighton will now need to pay, assuming production is maintained. Southern Quarries has larger private mines as well, but these mine extractive minerals, and royalties have and will continue to be paid on the production of these extractive minerals.

The bill amends the Mining Act 1971 so that proprietors and operators of private mines will be required to pay royalties on minerals recovered from the mine upon the first change to the owner or operator of the mine from 19 June 2014. Budget day and the date of the announcement of this measure was 19 June 2014. This approach is consistent with the government's standard approach when announcing changes to transaction-based taxes, for example, changes to conveyance duty, etc., commencing the change to the arrangements from the date of announcement, treats all parties equally and means that a party cannot bring forward or delay a transaction to benefit from the change in arrangements.

In relation to questions asked about the nature of the legal advice as to why the government cannot disclose the amount of the potential liability, I am advised that broad-based internal estimates of liability were prepared by DECD to inform cabinet's decision making and, in particular, the budget process about its possible liability under the current legislation. The Attorney-General has been advised by crown that the public disclosure of the details of these internal estimates could potentially prejudice the state's position in the context of the ongoing litigation as it may constitute admissions by the state and expand the potential class of plaintiffs.

The Hon. Robert Lucas also asks for more details about the ex gratia scheme. Final details of the scheme have not been approved by cabinet. However, based on the work that is already being done in anticipation of the scheme, it is planned that the scheme will operate as follows: the payments will be made from a fund established and appropriated 'to enable discretionary payments to some teachers whose long service leave will be brought into line with other public sector employees following amendment to the Education Act 1972'.

Whether to make a payment and how much that payment will be will be at the discretion of the Attorney-General. An invitation to apply for an ex gratia payment will be made by both public advertisement and also a notation on payslips. An application will be posted on the DECD website. Applicants will be asked to provide their bank details to facilitate payment and will be able to provide documents and information in support of the application.

Any person believing that they may have an entitlement may apply. A closing date for applications will be set. DECD will advise the Attorney-General of the total number of applications received by the closing date and will provide information about the applications to the Attorney-General for his consideration.

DECD will identify whether a teacher was and/or is employed as a temporary teacher and will provide a summary of the service record of the applicant. The information it provides will include matters submitted by an applicant in support of their application. The Attorney-General will consider this information and any advice and any other information he seeks to assist him in his decision-making. Applicants will be notified of the Attorney-General’s decision.

Finally, there was a question by the Hon. Mr Lucas on how the government arrived at the amount of $15 million for the ex gratia scheme. I am advised that DECD completed internal calculations in relation to a sample of persons named in the current proceedings in an attempt to ascertain an approximate cost based on average. This amount was then scaled up to cater for more individuals applying for a payment when the ex gratia scheme is announced.

I think I have addressed all of the questions that were asked; however, if I have missed any, I am happy to deal with those during the committee stages that hopefully we will pursue during our next sitting week. So, with those comments, I urge honourable members to support this important bill and look forward to it being dealt with expeditiously during the next sitting week.

Bill read a second time.

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