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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-10-28 Daily Xml
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Statutes Amendment (SACAT) Bill

Committee Stage

In committee.

(Continued from 14 October 2014.)

Clause 98.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 36, line 16—After '(and' insert:, 'subject to subsection (11),'

This amendment is a test clause for all six amendments which deal with the same issue. As such, I will speak on the package of amendments as one. The first amendment is very straightforward. Clause 98 of the bill sets out the transitional provisions. Subclause (9) provides that the Guardianship Board is dissolved by force of this subsection. Subclause (10) goes on to provide that a member of the Guardianship Board, holding office when subsection (1) comes into operation, will cease to hold office at that time and any contract of employment, agreement or arrangement relating to the office held by that member is terminated by force of this subsection at the same time and no right of action will arise against a minister or the state on account of that termination.

Amendment Nos 3 to 6 afford the same protection to members of the Residential Tenancies Tribunal and members of the Housing Appeal Panel respectively. In all three instances the aim of the amendments is to preserve a member's right to take action for compensation on account of the early termination of their contract.

It is important to note that these provisions would only apply to those members who have not accepted positions with the newly established SACAT and who, but for the provisions of this bill, would still have an unexpired contract of employment. In my view, the relevant provisions of the bill as presently drafted are fundamentally unfair, as they result in the loss of any entitlements that a member of the Guardianship Board, the Residential Tenancies Tribunal or the Housing Appeal Panel would otherwise have been entitled to under a contract of employment.

They are akin to the government's amendments to the Education Act, whereby it sought to retrospectively remove entitlements for temporary teaching staff. Just because the government has chosen to restructure does not mean that public servants, some of whom have dedicated years of their time to their job, should miss out on what they would otherwise be rightly entitled to, especially given that there is no cause for their termination. With that, I urge honourable members to support this package of amendments.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The government made the decision not to roll over existing members into SACAT, instead calling for applications for membership. All existing members are invited to apply for positions within SACAT. Whether the members applied was obviously a matter for them. The president of the Guardianship Board and the presiding member of the Residential Tenancies Tribunal are statutory appointments, as opposed to executive SACE appointments.

The government has received crown advice that the existing president of the Guardianship Board or the presiding member of the Residential Tenancies Tribunal would not be entitled to any financial compensation in the event that their appointments end following the commencement of SACAT and the abolition of the relevant tribunal. The measure in the bill removing entitlements was included out of caution, so as to remove any room for argument.

Preliminary advice indicates that mere delegation of that provision may not overcome the usual principle that when a statutory office is abolished by statute the appointment comes to an end without the incumbent having any entitlement to compensation. The end result might be that the statutory removal of the entitlement is simply deleted from the bill. There may be room for argument as to what are the incumbent's entitlements, therefore the drafting approach in the bill has attempted to put this matter beyond doubt. For those reasons we oppose this amendment.

The Hon. R.L. BROKENSHIRE: I ask the minister, and in asking the minister I make these few remarks. I find the hypocrisy of the government absolutely amazing on these sorts of issues. We have a Mr Worrall, whom the new Premier did not want to have anywhere near him, who goes to the university to do something that none of us can really work out, and he is looked after and accommodated like you would not believe so that he does not cause a problem for the government. He is still on $300,000 a year.

Loyal, committed people who are dedicated and do an exceptionally good job in an area like guardianship, which is so complex, do not cause any problems for the government, but when the government realises that it has caused its own problems and inefficiencies for such a long period of time, it decides that it needs the money from the Guardianship Board to fund what it is about to put before the parliament.

The board acts in the interests of those vulnerable people, some just over 18 years of age, who have been physically, mentally and sexually abused, and are cared for and looked after in a democratic process. There are others who, sadly, have mental health issues, Alzheimer's and the list goes on. That is where the care and management was out there and because they are actually genuine and passionate about what they are doing and stand up to the government and put a point of view forward to say that they do not believe the Guardianship Board should be put into SACAT, they are done over by the government.

I put those words on the public record, and I ask the minister to precisely advise the house whether or not there were any clauses within contracts particularly for people like the only one who is in a permanent position, that is the presiding officer, to advise whether or not there was any clause in there that if the termination was to occur early there would be adequate remuneration and/or compensation for that. Otherwise, I see it as a disgusting situation. I also say that, again, a government that purports to look after the worker, proper industrial relations and fairness speaks one way and acts another.

The Hon. G.E. GAGO: I am advised that the president does not have a contract. It is a statutory appointment, and the terms of appointment for the president are set out in the Supreme Court Act, as they are for all judicial appointments to the Supreme Court.

The Hon. S.G. WADE: In that context, has the minister seen the document called 'Contract of Employment as an Executive—Statutory Appointment, Guardianship and Administration Act 1993', which purports to be a contract between the Hon. John Rau, Attorney-General of the state of South Australia and the president of the Guardianship Board, dated March 2013?

The Hon. G.E. GAGO: I will need to take that on notice. At the moment, we are waiting for an officer who can provide some information about that. At present, we do not have advice.

The Hon. M.C. PARNELL: I will make my brief contribution now. I guess the minister, on a very rare occasion, is at a disadvantage, because everyone else in the room has that contract. Just to help her understand it, clause 15 of the contract is one of those standard type of clauses for positions of this nature, and it is headed 'Removal from or vacation of office'.

It makes it clear that there are only very limited circumstances in which a person's tenure can be ended, and they include things like mental or physical incapacity, neglect of duty, dishonourable conduct or death. If a person completes their term of office and they are not reappointed they have no rights. They can resign but there is no other procedure, to my understanding, whereby the government can unilaterally end a fixed-term contract of employment.

I noticed the Hon. Stephen Wade said the heading is Contract of Employment as an Executive—Statutory Appointment. The wording of the Hon. Mr Darley's amendment uses the words 'the termination of a contact of employment'. My way of thinking is that the Hon. John Darley's amendment refers to this particular contract and perhaps others, as he has alluded to.

I would like to put some remarks on the record in relation to the merits of the issue. It is unfortunate that we should primarily be talking about positions rather than individuals, but the starting point is the government's decision some time ago to bring in a new broom and to make a clean sweep of all the positions, and that is something that it was entitled to do. Normally the government cannot do something like that in the Public Service without wearing the consequences of it. If it is not going to honour people's contracts of employment it needs to provide some redundancy or some entitlements.

At its most basic level I think what this bill that we are dealing with does is to seek to get the government off the hook in relation to the industrial obligations that it would have in any other situation. It has said that by the passage of the SACAT Bill the Guardianship Board is abolished and that therefore all the people who had tenure under that board, their tenure is abolished at the same time. So, effectively, what the government is doing is asking the parliament to do something that it, as an executive, could not do itself. From an industrial point of view, I think that is an appalling way to behave.

The minister acknowledged in her opening remarks that the advice that she has from crown law is that the consequence of the bill we are debating is that there will be no entitlements for those people who are losing their jobs. The Hon. John Darley's amendment does not specify what those entitlements might be but certainly says that they have the right to seek some redress for the untimely cancellation of their contracts.

I think it is important to get some sort of perspective as to what the nature of this employment is, because these positions, being statutory appointments (effectively ministerial appointments) are an interesting hybrid between a member of the judiciary and a member of the Public Service. In fact, I describe them as quasi-judicial positions. My evidence for that is that the remuneration paid to the presiding member of the Guardianship Board is linked to that of a stipendiary magistrate. It is clearly the government's intention that this person be regarded as of that same rank. When the stipendiary magistrates get a pay rise, the person holding the position of the presiding member of the Guardianship Board gets a pay rise.

They are also similar to public servants, for example, in relation to annual leave—so recreation leave, personal leave, long service leave. The contract stipulates that the president is entitled to that leave 'on the same basis as persons employed as executives in the Public Service', with the only exception being (as I can see it) that the president is not entitled to a leave loading. However, in all other respects they are, effectively, public servants.

There are conditions of the contract that preclude the presiding member of the Guardianship Board from engaging in legal practice; they are to devote themselves full-time and with due diligence to the office of the position. I think that it is unreasonable for the parliament to effectively do the executive's dirty work and see positions such as this ended with no entitlement to any redundancy or, in fact, any entitlement at all.

I would also point out that, on the information I have, the current president of the Guardianship Board was appointed on the 25th day of March 2013 for a five-year term. My search of the Hansard and media records shows that it is approximately six months later that the Attorney-General is first talking about abolishing the Guardianship Board and transferring it to SACAT. The minister will not be able to answer the question so maybe I will just put it as a hypothetical.

In the interview process with Mr Moore being reappointed for a second five-year term—obviously, they were satisfied with his first five-year term and appointing him for a second five-year term—if they had said to him, 'We are signing you up for five years but do you know we are going to abolish the position?', maybe he would say, 'Maybe I'll go back to my legal practice.' But I bet you that in that interview situation they did not say, 'In six months time we are going to be talking about abolishing your position.'

I also do not believe, just because I have managed to find the first reference on the public record, that public servants and people in the minister's office did not know prior to 25 March 2013 that this was on the cards. It may be that that is vehemently denied but it seems to me that projects such as this take a long time to bring to fruition. It may be just coincidence but I have trouble believing that. I think it is unfair in the extreme to allow someone to believe that they are being signed into a five-year term and then six months later start talking about abolishing their position through legislation with no compensation.

Unless there is some new information that the government can provide, such as the fact that Mr Moore, for example, was fully apprised at the time he reapplied for the position of the fact that his job was not going to last five years, that might put a different slant on it, but there has been no information of that sort brought forward, so it seems to me that, from an industrial point of view in terms of natural justice, the Hon. John Darley's amendments go a fair way towards redressing an unfortunate wrong that is perpetrated in this bill.

The Hon. G.E. GAGO: I have some advice in relation to the question that the Hon. Robert Brokenshire asked. I have been advised that Mr Jeremy Moore was appointed as President to the Guardianship Board by the Governor in Executive Council. Whether the contract of employment was attached to that cabinet submission in 2013 is uncertain, so that confirmation will need to be taken on notice.

In relation to the question that the Hon. Mark Parnell has just asked, I am also advised that we are bound by statute to appoint Mr Jeremy Moore for five years, but in relation to other details about what was discussed I do not have that. I would have to take that on notice as well.

The Hon. S.G. WADE: On the answer the minister has just given, I accept the point the government makes that it may be bound by statute to appoint for five years, but it is not required to also do a parallel contract. There is certainly no statutory requirement that a parallel contract be for five years. The Hon. Mark Parnell has made the point that was signed on 25 March 2013, six months before the matter was raised in the parliament, as I understand it. I can almost recall that being raised in the parliament

The Hon. M.C. Parnell: It might have even been in estimates.

The Hon. S.G. WADE: Yes, it may well have been, which would have been June whereas this is March. But let us put it this way: the Attorney-General had indicated for some years that he had been thinking about a SACAT so I do not think it is beyond the realms of possibility that when the contract was signed the government did not think it was a reasonable prospect that they would be looking to roll this body into SACAT.

Having made that comment about the minister's response and Mr Parnell's comment, I might take the opportunity to indicate the Liberal Party's position. The Liberal Party will be supporting the amendment of the Hon. John Darley. We are not willing to aid and abet the government in using the force of law to extinguish the legal rights of individuals which the government does not think the person has but just cannot be bothered taking the risk of having that person pursue those legal rights in the courts of law.

The government is asking this parliament to use its legislative power to override existing contractual agreements. In that context I bring the attention of the committee to a letter from Mr David Meyer, a barrister and solicitor. The letter was to the Hon. Jay Weatherill, and I understand it was written on behalf of Mr Moore. It is in relation to this bill, and it says:

The government's bill to terminate the contract of the President without compensation is a stunning example of 'sovereign risk'—something that you may expect from a third world dictatorship, but not from an Australian state legislature that purports to govern in accordance with long-term conventions and respect for the rule of law. Why would good candidates put themselves forward for government contract positions, if the government demonstrates that it will terminate such contracts at its pleasure, without compensation?

I appreciate that the law in relation to statutory officers may well be another matter, but the government is expecting the parliament to cooperate with its unilateral withdrawal from the commercial arrangements, and the Liberal Party is not willing to be party to that.

The Hon. B.V. FINNIGAN: I support this suite of amendments. It is an unusual situation because, normally speaking, my approach to a statutory appointment would be 'as Her Majesty giveth so may she take away', but there is this element where it has been characterised formally as an employment contract. Given the nature of the appointment, I think it is justified that these amendments be passed. While the president of the Guardianship Board and other officers are not judicial officers (because that would put them in a different category) they are quasi-judicial, and you have been asking them to make very serious decisions which affect people's lives in a most profound way.

To allow parliament to say, 'Because we have changed the structure of how these matters are administered, your appointment is terminated and there is to be no compensation in respect of the term you would have otherwise served,' would, I think, be a very dangerous precedent. You would not want to get into a situation where a government might say, 'We're really not happy with the decision that such and such board is making; let's roll that into another administrative body and that way we'll be rid of those pesky current appointments.'

I am not suggesting for a moment that that is what has occurred on this occasion. I make no reflection at all on that, but, in principle, while normally a statutory appointment may be revoked by the Governor in the same fashion as the appointment was made, I think this is in a different category because of its quasi-judicial nature, because of the characterisation given to the president and others as a contract of employment.

I do not know if it was first contemplated that SACAT would handle the current responsibilities of the Guardianship Board, but I certainly know that SACAT has been in gestation since about 2010. So while the decision to include the Guardianship Board's responsibilities and abolish it may be relatively recent, I agree with other honourable members that it would certainly seem odd that a contract would be entered into in 2013 for five years without some inkling that a very major change to the structure—that is, abolition—was contemplated.

Whether or not that was contemplated at that time I do not know, but it is not beyond the realm of possibility and reasonableness that that sort of communication would have been made at the time, that, 'While this is a five-year appointment, we are seriously contemplating the rolling of your responsibilities into a new administrative body.' I support the amendments.

The Hon. R.L. BROKENSHIRE: I have a couple of points I would like to put on the public record. As the Hon. Mr Finnigan said, this is not strictly a straight statutory appointment. I have deliberated on this for some long time. I was waiting to hear what the government had to say. I think it is appalling that a person's situation for fairness and democracy has to be sorted out by the chamber, but that is the only way it is going to be sorted out, as I can see. Why the parliament has to micromanage basic issues is beyond me, but it appears that we have to in this case, for justice.

I wonder where justice is going in this state when it comes to the government's attitude to employment. We saw the Public Sector Management Act the then minister (now Premier) brought in, which was very draconian against workers, and now we see a situation like this. I know for a fact, having talked to the presiding officer, not initially over this matter but over the matter of whether or not there was any discussion with the Guardianship Board with respect to SACAT, that the answer was no, there was no discussion. They were kept out of the loop, as I understand and recall my conversation when I started to check to see who was involved in consultation. Clearly, we had other members concerned because my colleague the Hon. Mark Parnell actually raised the issue of consultation, as I recall, and it was delayed for some period of time.

Can I say and put on the public record that one thing I definitely do know is that somebody who is not only a qualified lawyer but an experienced lawyer who takes on the role of the president of the Guardianship Board would have actually checked to see what the situation was when they had an extension for five years and would have known that they had a contract. I find this a deplorable and very poor situation and badly advised by whoever was advising the Attorney-General in this case. It is not the problem of the Leader of Government Business here, but it is a problem for the government.

I say to the chamber that Family First will be supporting the Hon. Mr Darley's amendment. Whilst we have made a commitment thus far to support the third reading, I would put it to the chamber that Family First would have to reconsider, if this matter is not sorted out between the houses, whether we would support the third reading of the bill.

The Hon. S.G. WADE: I thought the way the Hon. Robert Brokenshire put it then, highlights the invidious position this parliament has been put in. If I recall the words the Hon. Robert Brokenshire used, he said, basically, the parliament has to step in and adjudicate and provide justice in this situation. To me, that is chilling. We are a parliament. We are separate from the judiciary. It is not, within the context of the separation of powers, for this government to say, 'We don't think this person has got legal rights, but you as a parliament have to extinguish them just in case.' It puts us in a position of having to adjudicate on the justice of that claim and that puts us in the position of the courts and it is an affront to the separation of powers. I think the Hon. Robert Brokenshire makes a strong case for why the Hon. John Darley's amendments must be supported.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 2 [Darley–1]—

Page 36, after line 17—Insert:

(11) The termination of a contract of employment under subsection (10) does not affect any right of action that a person employed under the contract may have against a Minister or the State on account of that termination, being a right that relates to the payment of compensation on account of the early termination of the contract.

(12) Subsection (11) does not apply in relation to a person who, on the commencement of this subsection, has been appointed as a member of the Tribunal.

Amendment carried; clause as amended passed.

Clause 181.

The Hon. J.A. DARLEY: I move:

Amendment No 3 [Darley–1]—

Page 57, line 17—After '(and' insert: ', subject to subsection (8a),'

Amendment No 4 [Darley–1]—

Page 57, after line 18—Insert:

(8a) The termination of a contract of employment under subsection (8) does not affect any right of action that a person employed under the contract may have against a Minister or the State on account of that termination, being a right that relates to the payment of compensation on account of the early termination of the contract.

(8b) Subsection (8a) does not apply in relation to a person who, on the commencement of this subsection, has been appointed as a member of the South Australian Civil and Administrative Tribunal.

Amendments carried; clause as amended passed.

Clause 203.

The Hon. J.A. DARLEY: I move:

Amendment No 5 [Darley–1]—

Page 65, line 37—After '(and' insert:, 'subject to subsection (8),'

Amendment No 6 [Darley–1]—

Page 65, after line 38—Insert:

(8) The termination of a contract of employment under subsection (7) does not affect any right of action that a person employed under the contract may have against a Minister or the State on account of that termination, being a right that relates to the payment of compensation on account of the early termination of the contract.

(9) Subsection (8) does not apply in relation to a person who, on the commencement of this subsection, has been appointed as a member of the Tribunal.

Amendments carried; clause as amended passed.

Long Title.

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

Amendment No 5 [EmpHESkills–1]—

Long title—After 'the Intervention Orders (Prevention of Abuse) Act 2009;' insert:

the Local Government Act 1999;

Amendment No 6 [EmpHESkills–1]—

Long title—Delete 'and the South Australian Housing Trust Act 1995' and substitute:

; the South Australian Housing Trust Act 1995 and the Valuation of Land Act 1971

These amendments are consequential to Amendment No. 3.

Amendments carried; long title as amended passed.

Bill reported with amendment.

Third Reading

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) (17:56): I move:

That this bill be now read a third time.

I will use this opportunity to briefly clarify an answer that was given to the Hon. Stephen Wade in response to a question about the amendments of the Valuation of Land Act and the Local Government Act that were considered and passed in this place on the last occasion of debate on this bill. The honourable member asked whether the amendments would mean that the appeals under the Emergency Services Funding Act 1998 would also be able to access SACAT.

I should clarify that the appeals or the reviews themselves are against the valuation of land, including for the purposes of calculating the emergency services levy. As such, the appeals are under the acts amended and not the Emergency Services Funding Act. It is, however, the Emergency Services Funding Act that requires an over or under payment to be refunded or recovered if a review under the Valuation of Land Act or Local Government Act changes the land value and hence requires a readjustment to the levy.

The Hon. S.G. WADE (17:58): I express my extreme displeasure that this information has been provided to us at the third reading. This information should have been provided to us as soon as we came back into committee so that I could consider the implications of the material provided and consider whether I felt that the minister's answer required any response. The minister could have done me the courtesy of providing the information to me earlier in the day. I indicate that this is another example of a government that wants to ram through bills without cooperating with other members in the chamber.

The PRESIDENT: I understand that the minister tried to actually give the explanation prior, but was given advice that it was not appropriate because we had to recommit the clauses, so the minister did not do it deliberately to keep information from you.

The Hon. S.G. WADE: There must be a way for the house to be properly informed.

Bill read a third time and passed.

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