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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-09-23 Daily Xml
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Statutes Amendment (SACAT) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 September 2014.)

The Hon. J.A. DARLEY (17:04): I rise to speak briefly on the Statutes Amendment (SACAT) Bill. Last year I supported the government's South Australian Civil and Administrative Tribunal Bill, which was the first step aimed at streamlining some of our tribunal and court processes by establishing a one-stop shop for a range of administrative, civil and disciplinary proceedings. Specifically, the bill's purpose was to establish the structure, membership, constitution and other associated matters required to facilitate the establishment of the civil and administrative tribunal.

The bill was said to constitute a significant reform in the field of administrative law in South Australia, the beginnings of which trace back to 1984 when the South Australian Law Reform Committee recommended the establishment of a general appeals tribunal to streamline and simplify the review of administrative decisions in this state. This was a very positive step, especially given that South Australia is now one of the last jurisdictions to address its ad hoc tribunal system.

The current bill deals with the next stage of the establishment of the tribunal; namely, the conferral of jurisdiction upon the tribunal. It is proposed that this also be dealt with in two separate steps. The first will be to transfer the work of the Residential Tenancies Tribunal, the Guardianship Board and the Housing Appeal Panel, as well as appeals presently going from those bodies to the District Court.

The second step will be to transfer the work of the Public Sector Grievance Review Commission, appeals to the Administrative and Disciplinary Division of the District Court under the Freedom of Information Act 1991, and the appeals to the Magistrates Court under the First Home and Housing Construction Grants Act 2000.

The original time frame for the tribunal to become operational has obviously been pushed out and will also depend on the outcome of the debate on the current bill. I understand that with respect to the transfer of matters under stage I, the government's intention is that it will commence operation shortly after this bill is passed, subject to being passed without any substantial amendments. In relation to the second stage, I understand that the government intends that this will commence early next year.

I will say at the outset that I am extremely supportive of the decision to add land and valuation disputes that are currently heard by the Supreme Court to the new tribunal, and I commend both the government and the opposition for deciding in favour of this. I have long advocated for those matters to be transferred to a different jurisdiction, particularly because of the cost-prohibitive nature of the current scheme where even if you win you lose because of the costs involved with proceeding through the Supreme Court process. This is certainly a very welcome development.

That said, the transferral of the Guardianship Board and, by extension, matters concerning mental capacity and mental health, appear to have resulted in some warranted angst. Those concerns have already been canvassed by some of my colleagues and, in particular, the Hon. Mark Parnell, and my position is that I share the concerns that have been raised. I can appreciate that the Attorney is somewhat frustrated at the suggestion that it is not going to be all smooth sailing with the passage of this bill because from his point of view there has been a considerable amount of consultation.

However, we cannot ignore the fact that there are now several peak stakeholder groups who are telling us that they were not involved in that process and that they are extremely concerned about the proposal to shift the Guardianship Board into the new tribunal, especially given the proposed time frame for the shifts. We have also received written confirmation from the Royal Australian and New Zealand College of Psychiatrists confirming its concerns and urging us in this place to oppose what it regards as a retrograde step that is likely to lead to degradation of the quality of service currently given to vulnerable members of our community.

I know the government has said that it has taken considerable steps to ensure that the new tribunal dealing with guardianship matters are not overly disrupted by the new system. However, these are not the concerns that we can overlook and, like the Hon. Mark Parnell and the Hon. Tammy Franks, I have not been convinced that the Guardianship Board should be moved across at this point in time, or at least not until the issues that have been raised are addressed.

As we all know, the Guardianship Board deals with some of our most vulnerable members of the community. It deals with very emotive issues concerning a person's wellbeing, and it is extremely important that the therapeutic jurisdiction of the Guardianship Board is not replaced with an overly legalistic and process-driven one. On that basis, I support postponing further debate on the bill until these concerns are adequately addressed. How we proceed from there will obviously depend on the outcome of those discussions.

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) (17:10): I thank honourable members for their second reading contributions, and I take this opportunity to address some of the matters raised during the second reading debate. The debate thus far has made it very clear that there remains ongoing concern about the conferral of the Guardianship Board jurisdiction upon SACAT. The concerns of members regarding the conferral of the Guardianship Board jurisdiction are many and varied, and I take this opportunity to address some of those issues and to assure members that some of these concerns are unfounded.

First and foremost, it has been made clear to the government by members that they believe that there was insufficient consultation with the mental health community at large. The government maintains the view that considerable consultation has occurred with the agencies affected, such as SA Health, the Office of the Chief Psychiatrist and the Guardianship Board, to name just a few. It has also been public knowledge since the original SACAT legislation was introduced over a year ago that the Guardianship Board would be one of the first bodies to be assumed by SACAT. The Attorney-General discussed this on radio, as did the president of the Law Society at the time.

In any event, the government proposes to not progress the bill at this time and will take the opportunity to consult with relevant organisations about the conferral of the Guardianship Board jurisdiction, as proposed in this bill, and to seek their support when this bill is further considered in the October sittings.

It is opportune now to address some of what we believe are misconceptions regarding the conferral of the Guardianship Board jurisdiction upon SACAT. Section 8 of the South Australian Civil and Administrative Tribunal Act 2013 sets out the objectives of SACAT. Aside from the expected objectives for the establishment of a civil tribunal, such as independence, procedural fairness, transparency and accountability, section 8 goes much further than this.

I remind members that section 8 of the South Australian Civil and Administrative Tribunal Act 2013 requires SACAT to be accessible and responsive to parties, especially those with special needs. SACAT must ensure that applications are resolved as quickly as possible, while achieving a just outcome.

SACAT is required to resolve disputes through high-quality processes and the use of mediation and alternative dispute resolution procedures, where appropriate. It must also use straightforward language and procedures and act with as little formality and technicality as possible. It must also be flexible and adjust its procedures to best fit the circumstances of a particular case or jurisdiction. I am advised that the President of SACAT, Justice Parker, along with the team assisting in establishing SACAT, remain absolutely committed to meeting each of the statutory objectives set out in section 8 of the SACAT act.

The practices and procedures of SACAT, when it commences operation, will very closely resemble those that have been followed by the various tribunals and boards whose functions are to be transferred to SACAT. However, after appropriate consultation with key interest groups, improvements will be made progressively as SACAT continues operations. On that basis, it has been a deliberate policy decision, in drafting this bill and future bills that confer jurisdiction upon SACAT, to not engage in any legislative reforms but to retain the status quo wherever possible and simply to confer the jurisdiction upon SACAT.

The first step in maintaining continuity between SACAT and existing tribunals and boards has been the division of the work of SACAT into three streams, which is intended to preserve the present broad division of activities. If the bill before parliament so allows, the community stream will comprise the work currently performed by the Guardianship Board together with that of the EO tribunal, with further jurisdictions to be conferred in the future.

Like all other procedures concerned with the administration of SACAT, the use of lists will not inhibit flexibility, but quite the contrary. For example, and where appropriate, mental health and guardianship issues concerning the same person might be heard concurrently or consecutively by SACAT. Moreover, it is possible that applications involving the work of different streams might be dealt with together where advantageous and provided that any necessary confidentiality can be maintained.

With respect to accessibility, the SACAT implementation team is developing a comprehensive but simple to use website and a user-friendly online application form so as to greatly simplify and broaden access. Those who do not have access to the internet or who are unable, for whatever reason, to manage that online application, will be welcome to contact SACAT by telephone, whereupon applications will be completed on their behalf.

The online form has been designed to accommodate all future jurisdictions proposed to be conferred to effectively future-proof this measure as much as possible. SACAT will also maintain the level of service currently provided by boards and tribunals to regional South Australia, including the APY lands, and consideration is currently underway to expand the current visiting program. Arrangements have already been finalised to make greater use of audiovisual links so as to facilitate access by persons living outside the metropolitan region of Adelaide.

I also note that the president of SACAT, Justice Parker, has also expressed a willingness to the Attorney-General to conduct mental health reviews at institutions in appropriate cases, to minimise the impact on patients and staff attending such a hearing, with the associated need to travel and to be in attendance personally.

Finally, I wish to address the misconception that no other jurisdiction has conferred both the guardianship and mental health original review jurisdictions on their respective tribunal. This is incorrect, I am advised. The ACT Civil and Administrative Tribunal (ACAT), established under the ACT Civil and Administrative Tribunal Act 2008, makes original and review decisions under the ACT Mental Health (Treatment and Care) Act 1994.

This aside, the reason why this bill proposes to confer both the original and the review jurisdictions of the Guardianship Board is because, unlike the other states in Australia, the mental health and guardianship jurisdictions were merged many years ago and since that merger we have not had a separate mental health tribunal. This is not the case with other jurisdictions.

Over the course of the next three weeks, I urge all members to consider my comments in reply and to support the measures in this bill. I specifically ask members to reconsider their objections to the conferral of the Guardianship Board upon SACAT, which the government considers fundamental to the work undertaken by SACAT, once operational.

Bill read a second time.

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