Statutes Amendment (SACAT) Bill

Second 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) (17:54): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Statutes Amendment (SACAT) Bill 2014 seeks to amend a range of Acts for the purposes of conferring jurisdiction upon the South Australian Civil and Administrative Tribunal ('Tribunal'), established by the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act'). The task of conferring jurisdiction upon the Tribunal is a significant undertaking, to occur in five proposed stages over the next two years.

This Bill comprises stages one and two of the conferral of jurisdiction upon the Tribunal. Stage one comprises the work of the Residential Tenancies Tribunal, the Guardianship Board and the Housing Appeal Panel, as well as the appeals presently lying from those bodies to the District Court, and is proposed to take effect from the date the Tribunal becomes operational in around September 2014. Stage two is comprised of the work of the Public Sector Grievance Review Commission and appeals to the Administrative & Disciplinary Division of the District Court under the Freedom of Information Act 1991 plus appeals to the Magistrates Court under the First Home and Housing Construction Grants Act 2000. It is proposed that these amendments allocated to stage two will come into effect in around early 2015.

In summary, this Bill proposes to transfer to the Tribunal:

functions of the Residential Tenancies Tribunal ('RTT') established under the Residential Tenancies Act 1995 ('RTA'), and to make related and consequential amendments to the Retirement Villages Act 1987 and the Residential Parks Act 2007;

functions of the Guardianship Board established under the Guardianship and Administration Act 1993, and to make related and consequential amendments to the Advance Care Directives Act 2013, Mental Health Act 2009, Aged and Infirm Persons' Property Act 1940, and Consent to Medical Treatment and Palliative Care Act 1995;

functions of the Housing Appeal Panel ('HAP') under the Community Housing Providers (National Law) (SA) Act 2013 and the South Australian Housing Trust Act 1995;

functions of the Public Sector Grievance Review Commission ('PSGRC') established under the Public Sector Act 2009;

functions of the Magistrates Court under the First Home and Housing Construction Grants Act 2000;

functions of the Administrative and Disciplinary Division of the District Court under the Freedom of Information Act 1991; and

District Court appeals from the RTT and Guardianship Board.

In addition to conferring jurisdiction on the Tribunal, the Bill proposes to make amendments to the SACAT Act. These amendments correct omissions and further refine appeal mechanisms in response to feedback and advice received since the SACAT Act was proclaimed and the President of the Tribunal, Justice Greg Parker, was appointed.

The general approach taken by the Government to drafting the Bill has been that where provisions in the conferring Act replicate measures in the SACAT Act, the conferring Act provisions are to be deleted. The consequent effect of this is that the SACAT Act and the relevant conferring Act, as amended by this Bill, will operate concurrently in the respective jurisdiction. Consultation has occurred with the affected panels, commissions, tribunals and boards, which has assisted enormously in the drafting process and has enabled ongoing communication during this period of transition to SACAT about the changes that lie ahead.

The Bill (with some exceptions) preserves in each of the conferring Acts that are subject to amendment measures that provide specific functions, processes and powers that are unique or necessary to the respective jurisdiction. If special arrangements or powers are preserved by the amendments to the conferring Acts, and these differ from the provisions of the SACAT Act, existing provisions in the conferring Act will prevail.

Transitional provisions will be inserted into each conferring Statute that is subject to amendment in this Bill. The transitional provisions address the status of directions, orders, applications, referrals, reviews or appeals before and after the amended provisions take effect.

Further, for the RTT, Guardianship Board, HAP and PSGRC, the transitional provisions confirm that these bodies will be dissolved and that any member holding office at this time will cease to hold office and that any contract of employment, agreement or arrangement relating to the office held by that member is terminated. This approach has been necessary to ensure that the recruitment process for members of the Tribunal is done on a merits basis, with openness and transparency, so as to ensure the appointment to the Tribunal of members with appropriate skills for a generalist tribunal that will have a focus on Alternative Dispute Resolution. The Government notes that this was the approach taken with respect to recruitment of members in the Western Australian State Administrative Tribunal, established in 2005, and which the Tribunal has been modelled upon.

Turning now to the main features of the Bill.

Residential Tenancies Tribunal

The RTT is the State's busiest administrative tribunal, hearing upwards of 8000 matters each year. The RTT primarily makes original decisions and resolves disputes relating to tenancies in privately and publicly owned housing, retirement villages and residential parks. It is important to note that the significant legislative reforms made by the Government recently in the Residential Tenancies (Miscellaneous) Amendment Act 2013 will largely remain untouched by this Bill.

This Bill amends the Residential Tenancies Act 1995, the Residential Parks Act 2007 and the Retirement Villages Act 1987 to transfer responsibility for the RTT's functions to the Tribunal.

Amendments to the Residential Tenancies Act 1995

In summary, the amendments in this Bill to the RTA are for the Tribunal assuming and amalgamating the roles of the RTT and the Administrative and Disciplinary Division of the District Court when it hears appeals from decisions of the RTT. The powers of the Tribunal, as set out in Part 8 Division 3 of the RTA and the question of representation in proceedings before the Tribunal, will however remain unchanged.

In keeping with the approach to drafting outlined previously, provisions at Part 3, Divisions 1 and 2 of the RTA, which relate to the membership of the RTT and how proceedings are conducted in the RTT are repealed by this Bill. This is also the case with respect to Part 3, Divisions 9 and 10, in addition to Part 8, Division 1 of the RTA. These said provisions address reservations of questions of law and appeals, in addition to miscellaneous provisions regarding entry and inspection of property and contempt.

The measures relating to appointment and functions of bailiffs have required a departure from the current status quo. Currently section 98 of the RTA provides that the Governor may appoint a person to be a bailiff of the RTT. Given the RTT is to be abolished, the Bill proposes that section 98 be deleted and inserted (by amendment) into the SACAT Act. This is necessary to ensure that the President of the Tribunal is responsible for the appointment of any person to the role of bailiff and to provide the necessary flexibility for the functions of bailiffs, and the categories of persons that may be appointed to this role, for future growth.

Amendments to the Retirement Villages Act 1987

This Act is subject to consequential amendment in light of the amendments made to the RTA. In summary, the amendments propose that decisions currently made by the RTT under sections 31 and 32 of the Retirement Villages Act will instead be exercised by the Tribunal. This is necessary as the RTT will no longer exist.

The amendment proposed to section 31 of this Act is minor, related to the new appointment mechanism for bailiffs being deleted from the RTA and inserted into the SACAT Act.

The amendment to section 32 proposes to delete subsections relating to arbitration; the ability to make and grounds upon which an application can be declined; the ability to make ancillary and incidental orders; and the criminal offence of failing without reasonable excuse to comply with an order or direction of the RTT. These provisions are to be repealed on the basis that they replicate provisions in the SACAT Act. For the same reason, section 39, which sets out the appeal mechanism under this Act, will also be repealed.

Amendments to the Residential Parks Act 2007

This Act is amended in light of the amendments made to the RTA, which aside from consequential amendments, will result in decisions currently made by the RTT resolving disputes about residential parks agreements now being made by the Tribunal.

Housing Appeal Panel

Currently, the jurisdiction of the HAP includes the review of administrative decisions made by the South Australian Housing Trust under the South Australian Housing Trust Act 1995 and decisions made by community housing organisations or the Minister under the Community Housing Providers (National Law) (SA) Act 2013 ('National Law Act').

The Bill proposes to amend the South Australian Housing Trust Act 1995 and the National Law Act for the purposes of the Tribunal assuming the functions of the HAP, which will be abolished. The Bill will preserve the status quo in terms of review rights under these Acts.

The other type of matter that is currently heard by the HAP, which is also proposed to be transferred to SACAT, is appeals against a decision of the Regulator, or an action brought by a community housing provider, as provided in Schedule 1 of the National Law Act. The appeal against these matters to the Supreme Court is preserved in the Bill, as this will generally be about standards and funding of community housing providers.

The South Australian Housing Trust Act 1995 will be amended to delete section 32B, which establishes the HAP and to make consequential amendments to the definition of 'Appeal Panel'.

Public Sector Grievance Review Commission

Under the amendments proposed in this Bill, the PSGRC will be abolished and its functions transferred to the Tribunal. Accordingly, Schedule 2 is proposed to be deleted and substituted with two provisions relating to the Tribunal hearing matters that fall within the Public Sector Act 2009.

Firstly, for the purposes of proceedings before the Tribunal, there is to be a panel of public sector employees nominated by the Commissioner for Public Sector Employment and a panel of public sector employees nominated by public sector representative organisations.

Secondly, in exercising its powers under the SACAT Act for the purposes of this Act, the Tribunal will be constituted by 3 members of whom one will be selected from the panel of nominees of the Commissioner for Public Sector Employment by the President of Tribunal; and one will be selected by the applicant from the panel of nominees of public sector representative organisations. This measure will also retain the current requirements placed upon the PSGRC, which places an onus to have completed any review within 3 months and in any event, to proceed as quickly as a proper consideration of the matter allows. This preserves the status quo for these types of proceedings.

Amendments to Freedom of Information Act 1991 ('FOI Act')

Currently, pursuant to section 40(1) of the FOI Act, an agency that is aggrieved by a determination made on a review under Part 5, Division 1 of the FOI Act (by the Ombudsman or Police Ombudsman), may, with the permission of the District Court, appeal against the determination to the District Court on a question of law. Members of the public also have certain appeal rights to the District Court under section 40(2) of the FOI Act. It is proposed that the Tribunal assume the function of the District Court under sections 40(1) and (2) of the FOI Act.

Amendments to the First Home and Housing Construction Grants Act 2000

Appeals against decisions of the Treasurer on objections are currently heard by the Magistrates Court. The amendments in the Bill propose that SACAT assume the functions of the Magistrates Court, the consequent effect of which will be that the Court no longer has any functions under the Act.

The Guardianship Board

The Guardianship Board is a State tribunal tasked with making decisions about people with impaired decision-making capacity, including those suffering from mental illness or dementia.

Currently the Board has two separate functions:

appointing Guardians and Administrators for people with a mental incapacity, pursuant to the Guardianship and Administration Act 1993; and

in certain circumstances, making compulsory treatment orders for people with a mental illness, pursuant to the Mental Health Act 2009.

The Board has also recently assumed dispute-resolution functions under the new Advance Care Directives Act 2013, which commenced on 1 July 2014.

The existing legislative scheme, particularly within the mental health review function, is multi-tiered and complex, involving a review by the Board, a review in the District Court and a further review by the Supreme Court. The amendments in the Bill propose that the Tribunal will assume the Guardianship Board's role in making original decisions as well as, in some cases, its ordinary review jurisdiction. In addition the changes to the conferring Acts will enliven the Tribunal's internal review jurisdiction and the further right of appeal to the Supreme Court under the SACAT Act.

Amendments to the Guardianship and Administration Act 1993

The Bill proposes to repeal Part 2 Divisions 1 and 2, which relate to the establishment, functions, powers and constitution of the Guardianship Board in addition to providing for various officers of the Board. As stated, these measures will instead be governed by the SACAT Act.

A further significant change is proposed to section 32 of this Act, which currently provides the Board with special powers to place and detain protected persons. There are two limbs to the amendment proposed to section 32, which are necessary in the view of SA Health. Firstly, the amendment clarifies that any reference in the Act to 'residing in a specified place' includes a reference to residing in the place on a temporary basis, for example, a hospital. Secondly, this amendment further refines the restriction on where a patient on the relevant order under this Act can be placed in a hospital according to their clinical need.

Currently the Act at section 32(3)(b) prohibits placement or detention of a person 'in any part of an approved treatment centre under the Mental Health Act 1993 that is set aside for the treatment of persons with a mental illness.' This amendment proposes that a ward of a hospital or other facility that is an approved treatment centre under the Mental Health Act 1993 will not be taken to be a part of an approved treatment centre unless the whole of the ward is set aside for the treatment of person with a mental illness. SA Health submits this will provide necessary flexibility whilst ensuring that persons subject to orders under this Act are protected.

Part 6, which relates to appeals and references of questions of law, is proposed to be substituted with modified provisions relating to reviews and appeals. The modified provisions will operate in connection with the application of Part 5 of the SACAT Act.

Part 6A is to be inserted into the Act and modifies certain existing provisions so as to work in conjunction with the SACAT Act. These provisions include the requirement to give notice of proceedings, reasons for decisions and the ability to require persons to submit to a psychiatric or psychological report, a measure currently provided for in section 15 of the current Act.

Amendments to the Advance Care Directives Act 2013

The amendments to the Advance Care Directives Act propose to transfer the role of the Guardianship Board in resolving disputes under this Act to the Tribunal.

Section 47(b) which concerns priorities being given to wishes of persons who gave advance care directives (ACD) is proposed to be amended. If retained as currently drafted, it would require the Board/Tribunal to take reasonable steps to notify anyone who has been given a copy of an ACD of its revocation. This was thought to be an impractical requirement that is best addressed by the Tribunal making appropriate directions/consequential orders upon revocation.

Part 7 Division 5, which currently addresses reviews and appeals under the Advance Care Directives Act, will be deleted and substituted with new measures that will operate in connection with Part 5 of the SACAT Act. Part 7A is to be inserted into the Act, with respect to addressing special provisions relating to the Tribunal, such as the requirement to give prescribed persons notice of proceedings, a requirement to provide reasons for decisions and other like measures.

Amendments to the Mental Health Act 2009

The amendments proposed to the Mental Health Act are either consequential or related to the conferral of jurisdiction upon the Tribunal, or are at the specific request of SA Health to address current issues that will be of direct benefit to Tribunal efficiency if the opportunity is taken to address them in this Bill.

Firstly, this Bill proposes to remove the onus upon a psychiatrist or an authorised medical practitioner to send copies of a notice to both the Guardianship Board (soon to be Tribunal) and the Office of the Chief Psychiatrist and require that it only be sent to the Chief Psychiatrist. The Chief Psychiatrist will then be responsible for advising the Tribunal. This is necessary to address practical difficulties currently encountered by the Office of the Chief Psychiatrist as a result of dual notifications.

The second major reform proposed is in relation to Part 11, Division 2, which addresses appeals to the Guardianship Board against orders, representation on appeals and appeals to the District and Supreme Courts. This is necessary to operate in conjunction with the SACAT Act. Section 81 of the Mental Health Act will be amended so that it 'plugs into' section 34 of the SACAT Act, with the consequent effect of deleting section 82 (operation of orders pending appeal). Sections 84 and 85 of the Mental Health Act will be deleted and substituted with new measures relating to reviews and appeals that operate in connection with Part 5 of the SACAT Act.

Special provisions relating to the Tribunal will also be inserted into the Mental Health Act by this Bill. These relate to the constitution of the Tribunal for proceedings under this Act, the requirement to give notice and other similar miscellaneous matters. It should be noted that the requirement that the Board (now Tribunal) include a psychiatrist for Mental Health Act 2009 matters is being deleted from the Guardianship and Administration Act 1991 at the request of SA Health. This is consistent with the general legislative approach to leave the constitution of the Tribunal for various matters for the President of the Tribunal to determine as appropriate and also affords the desired flexibility for those proceedings under the Mental Health Act 2009 that may involve only legal or procedural questions and for which a psychiatrist is not needed or suited.

Amendments to the Consent to Medical Treatment and Palliative Care Act 1995

The Consent to Medical Treatment and Palliative Care Act 1995, has been substantially amended by the Advance Care Directives Act 2013. The amendments in this Bill predominately relate to Part 3A of the Act, which sets out a dispute resolution mechanism for 'eligible persons' regarding consent (or lack thereof) and the provision of medical treatment

The key amendment to Part 3A of the Act relates to Division 4, which is proposed to be deleted and substituted with new measures regarding reviews and appeals that are to operate in connection with the application of Part 5 of the SACAT Act.

Amendments to South Australian Civil & Administrative Tribunal Act 2013

Since the passage of the SACAT Act in 2013, the Act requires further refinement to address issues arising from the conferring of jurisdiction identified in the drafting of this Bill and to further refine existing provisions in response to feedback received by the Attorney-General's Department.

Firstly, it has become apparent that certain conferring legislation is unclear on whether the jurisdiction being conferred will invoke SACAT's original or review jurisdiction, or there is clarity but it would lead to an anomalous result. It is therefore proposed to amend section 34 of the SACAT Act to insert a definition of a 'reviewable decision'.

Also proposed are a number of amendments to section 71 of the SACAT Act regarding appeals from the Tribunal to the Supreme Court. Firstly, it is proposed to insert into section 71 that the Rules of the Supreme Court may provide that a matter that would otherwise go to the Full Court under subsection (1) will instead go to a single Judge of the Supreme Court, and vice versa. A further amendment will clarify that an appeal to the Supreme Court against a decision of the Tribunal in the exercise of its original jurisdiction may not be instituted under section 71 unless or until a review of the decision has been conducted by the Tribunal under section 70 of the SACAT Act, or unless one of the prescribed exceptions set out in (2b) apply. Thirdly, an amendment to section 71(3) proposes to clarify the nature of the appeal undertaken by the Supreme Court, which will be by way of rehearing, together with an amendment to section 71(4)(c)(i) to clarify the powers of the Supreme Court on appeal.

It is also proposed to insert a new offence into the SACAT Act, being the offence of disrupting proceedings of the Tribunal, which will attract a maximum penalty of a $10,000 fine or imprisonment for 6 months. The offence is designed to address disruptive conduct during Tribunal proceedings by persons who may be present but who are not involved in the proceedings, such as members of the public. This is necessary as current offences in the SACAT Act do not capture conduct by persons who are not parties to the proceedings.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Advance Care Directives Act 2013

4—Amendment of section 3—Interpretation

These amendments to the definitions are consequential on the transfer of jurisdiction under this Act from the Guardianship Board to SACAT.

5—Amendment of section 27—Substitute decision-maker may renounce appointment

This amendment is consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

6—Amendment of section 31—Tribunal to be advised of wish for revocation

This amendment clarifies that although the word 'review' is used, a review by the Tribunal under this section will form part of SACAT's original jurisdiction.

7—Amendment of section 32—Revoking advance care directives where person not competent

8—Amendment of section 45—Resolution of disputes by Public Advocate

9—Amendment of section 46—Public Advocate may refer matter to Tribunal

The amendments to these clauses are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

10—Insertion of section 46A

This amendment inserts new section 46A.

46A—Public Advocate may refer question of law to Supreme Court

This clause makes it clear that the Public Advocate may refer a question of law for the opinion of the Supreme Court.

11—Substitution of heading to Part 7 Division 3

12—Amendment of section 47—Tribunal to give priority to wishes of person who gave advance care directive

These amendments are consequential.

13—Amendment of section 48—Resolution of disputes by Tribunal

The amendments to this clause are consequential. They also make clear that a review under this section falls within SACAT's review jurisdiction and that a declaration or direction under this section will fall within the Tribunal's original jurisdiction.

14—Amendment of section 49—Tribunal may refer matter to Public Advocate

15—Amendment of section 50—Failing to comply with direction of Tribunal

16—Amendment of section 51—Orders of Tribunal in relation to substitute decision-makers

17—Substitution of heading to Part 7 Division 4

The amendments to these sections and heading are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

18—Substitution of Part 7 Division 5

This clause substitutes current section 53 to set out the provisions in relation to reviews and appeals made to SACAT under Part 5 of the SACAT Act.

Division 5—Reviews and appeals

53—Reviews and appeals

The proposed new section sets out who may make an application for an internal review of a decision by SACAT, in addition to matters in relation to costs and appeals of the Tribunal's decision to the Supreme Court.

19—Insertion of Part 7A

This clause inserts new Part 7A to make special provision for proceedings before SACAT under this Act.

Part 7A—Special provisions relating to Tribunal

54—Tribunal must give notice of proceedings

The proposed new section sets out the notice requirements in relation to SACAT proceedings, and allows for matters to be dealt with urgently.

54A—Reasons for decisions

This proposed section provides that SACAT must provide reasons for the Tribunal's decision to certain persons on request.

54B—Representation of person who is subject of proceedings

In addition to the provisions that deal with representation set out in the South Australian Civil and Administrative Tribunal Act 2013, the proposed new section provides that a person may be represented in Tribunal proceedings under this Act by the Public Advocate or (except for internal reviews) a recognised advocate, who is defined to be someone recognised by SACAT to be qualified to act as an advocate for the person.

20—Transitional provisions

This clause sets out the transitional arrangements in relation to the transfer of jurisdiction from the Guardianship Board to SACAT. The effect of the provisions is to transfer any proceedings before the Guardianship Board to SACAT to proceed as if they had been commenced before SACAT, and any right to make an application to the Guardianship Board that existed before these amendments, may now be exercised by making an application to SACAT.

Part 3—Amendment of Aged and Infirm Persons' Property Act 1940

21—Amendment of section 30—Relationship between this Act and Guardianship and Administration Act 1993

This amendment is consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

22—Transitional provision

This clause sets out the transitional arrangements in relation to the transfer of jurisdiction from the Guardianship Board to SACAT to provide for the provision of a notice with respect to a protection order to be forwarded to SACAT.

Part 4—Amendment of Community Housing Providers (National Law) (South Australia) Act 2013

23—Amendment of section 3—Interpretation

This amendment is consequential on the amendment to section 25 to remove the reference to the District Court.

24—Amendment of section 5—Meaning of certain terms in Community Housing Providers (National Law) for the purposes of this jurisdiction

This clause substitutes the South Australian Civil and Administrative Tribunal (SACAT) for the Housing Appeal Panel as the appeal body for the purposes of the Community Housing Providers National Law.

25—Repeal of section 14

This clause removes section 14 which sets out the provisions that relate to an appeal for the purposes of the national law. This section is no longer required as the provisions of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) will be relied on for the purposes of such an appeal.

26—Amendment of section 25—Appeals

Section 25 provides for an appeal against certain decisions of the Minister and the South Australian Housing Trust. The amendment substitutes the reference to the Administrative and Disciplinary Division of the District Court with a reference to SACAT as the body to which the appeal can be made.

27—Amendment of Schedule 2—Internal disputes

Schedule 2 of the Act sets out the provisions in relation to appeals regarding internal disputes between tenants and the community housing provider. The amendments to this Schedule substitute the references to the body to whom an appeal can be made in relation to certain decisions of the housing provider from the Housing Appeal Panel to SACAT. The amendments also delete those provisions that are no longer required on the basis that the provisions of the SACAT Act will now apply.

28—Amendment of Schedule 3—Repeal, related amendments and transitional provisions

Schedule 3 of the Act sets out the transitional arrangements that apply in relation to the transition of the registration of community housing providers to the national registration scheme. These transitional arrangements provide for an 18 month period in which current community housing providers must transfer to the national scheme and provide that, during this period, provisions of the repealed South Australian Co-operative and Community Housing Act 1991 may still apply (including the ability to appeal certain decisions to the Housing Appeal Panel). The amendments in this clause amend these transitional provisions to take account of the dissolution of the Housing Appeal Panel under this measure and the transfer of any proceedings that may have been instituted by the transitioning housing providers to SACAT.

29—Transitional provisions

This clause sets out the transitional provisions in relation to any proceedings that may have been commenced in the Housing Appeal Panel under the Act. The effect of the provisions is to transfer any proceedings to SACAT to proceed as if they had been commenced before that Tribunal. Any decisions, directions or orders of the Appeal Panel made before the commencement of these amendments will be taken to be decisions, directions or orders of SACAT. Any right to make an application to the Housing Appeal Panel that existed before the amendments to the Act by this measure, may now be exercised by making an application to SACAT. The transitional provisions also allow for SACAT to receive any evidence before the Appeal Panel and adopt any of its findings, decisions or orders where relevant (including in relation to proceedings that are fully heard), and to take such other steps to ensure the smooth transition of the proceedings to SACAT.

Part 5—Amendment of Consent to Medical Treatment and Palliative Care Act 1995

30—Amendment of section 4—Interpretation

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

31—Amendment of section 14—Interpretation

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

32—Substitution of heading to Part 3A

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

33—Amendment of section 18A—Interpretation

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

34—Amendment of section 18C—Resolution of disputes by Public Advocate

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

35—Amendment of section 18D—Public Advocate may refer matter to Tribunal

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

36—Insertion of section 18DA

This clause inserts new section 18DA.

18DA—Public Advocate may refer question of law to Supreme Court

The proposed section provides that the Public Advocate may refer any question of law for the opinion of the Supreme Court. This is consistent with current section 18H.

37—Substitution of heading to Part 3A Division 3

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

38—Amendment of section 18E—Resolution of disputes by Tribunal

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

39—Amendment of section 18F—Tribunal may refer matter to Public Advocate

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

40—Amendment of section 18G—Failing to comply with direction of Tribunal

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT.

41—Substitution of Part 3A Division 4

This amendment sets out certain matters in relation to reviews and appeals made to SACAT under Part 5 of the SACAT Act.

Division 4—Reviews and appeals

18H—Reviews and appeals

The proposed new section sets out who may make an application for an internal review of a decision by SACAT, in addition to matters in relation to costs and appeals of the Tribunal's decision to the Supreme Court.

42—Insertion of Part 3B

This amendment inserts new Part 3B.

Part 3B—Special provisions relating to Tribunal

18I—Tribunal must give notice of proceedings

The proposed new section sets out the notice requirements in relation to SACAT proceedings, and allows for matters to be dealt with urgently.

18J—Reasons for decisions

This proposed section provides that SACAT must provide reasons for the Tribunal's decision to certain persons on request.

18K—Representation of person who is subject of proceedings

In addition to the provisions that deal with representation set out in the South Australian Civil and Administrative Tribunal Act 2013, the proposed new section provides that a person may be represented in Tribunal proceedings under this Act by the Public Advocate or (except for internal reviews) a recognised advocate, who is defined to be someone recognised by SACAT to be qualified to act as an advocate for the person.

43—Transitional provisions

This clause sets out the transitional arrangements in relation to the transfer of jurisdiction from the Guardianship Board to SACAT. The effect of the provisions is to transfer any proceedings before the Guardianship Board to SACAT to proceed as if they had been commenced before SACAT, and any right to make an application to the Guardianship Board that existed before these amendments, may now be exercised by making an application to SACAT.

Part 6—Amendment of First Home and Housing Construction Grants Act 2000

44—Substitution of heading to Part 2 Division 6

This is a consequential amendment.

45—Insertion of section 27A

This clause inserts a new section into the Act, which is in similar terms to the current section 30 of the Act, which is being repealed. This is a consequential amendment that has the effect of removing the reference to the appeal to the Magistrates Court so that it only applies to decisions of the Commissioner.

27A—Objection not to stay proceedings based on relevant decision

This clause provides that if an applicant has lodged a written notice of objection with the Treasurer in relation to a decision of the Commissioner of State Taxation, the Commissioner is able to act as though that decision is correct until the objection is decided. Once decided, the Commissioner must take any necessary action to implement that decision.

46—Substitution of section 28

The current section 28 of the Act provides that a person who is not satisfied with the decision of the Treasurer on the objection against a decision of the Commissioner, may appeal to the Magistrates Court within 60 days. The new section 28 provides that the person may instead seek a review of the Treasurer's decision by SACAT within 60 days.

47—Repeal of sections 29 and 30

These clauses are no longer required as the SACAT Act provides for the powers of the Tribunal in relation to making a decision on a review and in relation to the staying of the original decision.

48—Transitional provisions

This clause provides for rights of appeal under the current section 28 of the Act that exist before the commencement of these amendments, but which have not yet been exercised, to be exercised instead by commencing proceedings before SACAT rather than the Magistrates Court. Any proceedings already before the Magistrates Court will continue to be dealt with by that Court.

Part 7—Amendment of Freedom of Information Act 1991

49—Amendment of section 4—Interpretation

These amendments are consequential and operate to remove the definition of the District Court which is no longer required, and to insert a definition of SACAT.

50—Amendment of section 14A—Extension of time limit

This amendment, which is consequential, substitutes the reference to appeal with a reference to review.

51—Amendment of section 23—Notices of determination

This amendment, which is consequential, substitutes the reference to appeal with a reference to review.

52—Amendment of section 25—Documents affecting inter-governmental or local governmental relations

This amendment, which is consequential, substitutes the references to appeal with references to review.

53—Amendment to section 26—Documents affecting personal affairs

This amendment, which is consequential, substitutes the references to appeal with references to review.

54—Amendment of section 27—Documents affecting business affairs

This amendment, which is consequential, substitutes the references to appeal with references to review.

55—Amendment of section 28—Documents affecting the conduct of research

This amendment, which is consequential, substitutes the references to appeal with references to review.

56—Amendment of section 36—Notices of determination

This amendment, which is consequential, substitutes the reference to appeal with a reference to review.

57—Substitution of heading to Part 5

This amendment is consequential.

58—Substitution of heading to Part 5 Division 1

This amendment is consequential.

59—Substitution of heading to Part 5 Division 2

This amendment is consequential.

60—Amendment of section 40—Reviews by SACAT

Section 40 of the Act provides that an agency that is aggrieved by a determination made on a review under Division 1 may, with permission, appeal to the District Court on a question of law. The effect of this amendment is to provide that any such review of that determination is to be by SACAT instead. It maintains the requirement for permission and that the review is only to be as to a question of law. It further provides that the question of law must be referred to a Presidential Member of the Tribunal. This clause makes other consequential amendments to the section to substitute references to the District Court with references to SACAT, and references to appeal with references to review.

61—Amendment of section 41—Consideration of restricted documents

This clause makes consequential amendments to the section to substitute references to the District Court with references to SACAT, and references to appeal with references to review.

62—Amendment of section 42—Disciplinary actions

This clause makes consequential amendments to the section to substitute references to the District Court with references to SACAT.

63—Transitional provisions

This clause provides for rights of appeal under the current Part 5 Division 2 of the Act that exist before the commencement of these amendments, but which have not yet been exercised, to be exercised instead by commencing proceedings before SACAT (and not the District Court). Any proceedings already before the District Court will continue to be dealt with by that Court.

Part 8—Amendment of Guardianship and Administration Act 1993

64—Amendment of section 3—Interpretation

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT. The amendments substitute references to the Board with references to the Tribunal and cross-reference certain terms with those in the SACAT Act.

65—Amendment of section 5—Principles to be observed

This amendment is consequential.

66—Repeal of Part 2 Divisions 1 and 2

This clause deletes the provisions of the Act that set up the Guardianship Board and provide for the officers of the Board.

67—Amendment of section 28—Investigations by Public Advocate

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

68—Amendment of section 29—Guardianship orders

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

69—Amendment of section 30—Variation or revocation of guardianship order

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

70—Amendment of section 31—Powers of guardian

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

71—Amendment of section 31A—Guardian to give effect to advance care directive

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

72—Amendment of section 32—Special powers to place and detain etc protected persons

The amendments in this clause clarify that a ward of a hospital that is an approved treatment centre under the Mental Health Act 2009 will not be taken to be part of an approved treatment centre unless the whole of the ward is set aside for the treatment of persons with a mental illness. It also clarifies that a person may be taken to reside in a place, even if the person is residing there on a temporary basis.

73—Amendment of section 33—Applications under this Division

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

74—Amendment of section 35—Administration orders

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

75—Amendment of section 36—Variation or revocation of administration order

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

76—Amendment of section 37—Applications under this Division

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

77—Amendment of section 38—Copy of order must be forwarded to Public Trustee

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

78—Amendment of section 39—Powers and duties of administrator

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

79—Amendment of section 40—Administrator's access to wills and other records

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

80—Amendment of section 41—Power of administrator to continue to act after death etc of protected person

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

81—Amendment of section 42—Power of administrator to avoid dispositions and contracts of protected person

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

82—Amendment of section 44—Reporting requirements for private administrators

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

83—Amendment of section 45—Reporting by Public Trustee

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

84—Amendment of section 46—Remuneration of professional administrators

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

85—Amendment of section 49—Withdrawal of applications

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

86—Amendment of section 50—Criteria for determining suitability for appointment

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

87—Repeal of section 53

This section which deals with the timing of the commencement of orders of the Board is no longer required.

88—Amendment of section 54—Termination of appointment

89—Amendment of section 55—Tribunal must give statement of appeal rights

90—Amendment of section 56—Restriction of testamentary capacity of protected person

The amendments to the Act in these clauses substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

91—Amendment of section 57—Review of Tribunal's orders

This clause makes consequential amendments and clarifies that even though the word 'review' is used in this section, a review of an order by SACAT under this section is in fact an exercise of its original jurisdiction.

92—Amendment of section 61—Prescribed treatment not to be carried out without Tribunal's consent

93—Amendment of section 63—Tribunal's consent must be in writing

The amendments to the Act in these clauses substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

94—Substitution of Part 6

This clause replaces the current provisions in Part 6 which deals with appeals and references of questions of law. The relevant provisions of the SACAT Act will now apply, and the new Part 6 sets out provisions to operate in relation to these.

Part 6—Reviews and appeals

64—Review and appeals

The proposed new section sets out who may make an application for an internal review of a decision by SACAT, in addition to matters in relation to costs and appeals of the Tribunal's decision to the Supreme Court. It also sets out special provisions in relation to particular types of decisions being reviewed in relation to timing.

65—Representation on reviews or appeals

This proposed new section sets out the ability of a person to be represented in relation to a review or appeal under the SACAT Act. This replicates the current provisions of section 73 of the Act.

Part 6A—Special provisions relating to Tribunal

66—Tribunal must give notice of proceedings

The proposed new section sets out the notice requirements in relation to SACAT proceedings, and allows for matters to be dealt with urgently.

67—Reasons for decisions

This proposed section provides that SACAT must provide reasons for the Tribunal's decision to certain persons on request and sets out the time in which the request must be made.

68—Representation of person who is subject of proceedings

In addition to the provisions that deal with representation set out in the South Australian Civil and Administrative Tribunal Act 2013, the proposed new section provides that a person may be represented in Tribunal proceedings under this Act by the Public Advocate or (except for internal reviews) a recognised advocate.

69—Tribunal may require reports

This proposed section replicates the provisions of current section 15 of the Act in relation to SACAT to allow the Tribunal to require the provision of psychiatric, psychological or medical reports.

95—Amendment of section 74—Tribunal may give advice, direction or approval

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

96—Substitution of section 82

This clause substitutes a new, updated service provision for the purposes of the Act.

97—Repeal of section 84

Section 84, which is an evidentiary provision, is no longer required as this is provided for in the SACAT Act.

98—Transitional provisions

This clause sets out the transitional provisions in relation to the transfer of jurisdiction from the Guardianship Board to SACAT. The effect of the provisions is to transfer any proceedings before the Guardianship Board to SACAT to proceed as if they had been commenced before SACAT, and any right to make an application to the Guardianship Board that existed before these amendments, may now be exercised by making an application to SACAT. It also preserves the effect of certain orders, directions or determinations of the Board, which will be taken to be those of SACAT. The clause also dissolves the Guardianship Board and terminates the office held by members of the Board, along with any associated contracts of employment or other arrangements or agreements. No right of action will arise against a Minister or the State on account of that termination.

Part 9—Amendment of Intervention Orders (Prevention of Abuse) Act 2009

99—Amendment of section 25—Tenancy order

This section provides that a copy of a tenancy order under the Act is to be given to the Registrar of the Residential Tenancies Tribunal. This clause makes a consequential amendment to this section to substitute the reference to the Residential Tenancies Tribunal with a reference to SACAT.

Part 10—Amendment of Mental Health Act 2009

100—Amendment of section 3—Interpretation

The amendments to this section are consequential on the transfer of jurisdiction from the Guardianship Board to SACAT. The amendments remove references to the Board and include references to the Tribunal and cross-reference certain terms with those in the SACAT Act.

101—Amendment of section 7—Guiding principles

The amendment to this section substitutes a reference to the Board with a reference to the Tribunal and is consequential on the transfer of jurisdiction to SACAT.

102—Amendment of section 11—Chief Psychiatrist to be notified of level 1 orders or their variation or revocation

The amendments in this clause clarify the requirements as to notification in relation to level 1 community treatment orders.

103—Amendment of section 15—Tribunal to review level 1 orders

This clause makes consequential amendments and clarifies that a review of a level 1 treatment order by SACAT under this section will fall within SACAT's original jurisdiction.

104—Amendment of section 16—Level 2 community treatment orders

These amendments are consequential.

105—Amendment of section 17—Chief Psychiatrist to be notified of level 2 orders or their variation or revocation

These amendments are consequential.

106—Amendment of section 22—Chief Psychiatrist to be notified of level 1 orders or their revocation

The amendments in this clause clarify the requirements as to notification in relation to level 1 inpatient treatment orders.

107—Amendment of section 26—Notices and reports relating to level 2 orders

The amendments in this clause clarify the requirements as to notification in relation to level 2 inpatient treatment orders.

108—Amendment of section 29—Level 3 inpatient treatment orders

The amendments to this section are consequential on the transfer of jurisdiction to SACAT.

109—Amendment of section 30—Chief Psychiatrist to be notified of level 3 orders or their variation or revocation

The amendments to this section are consequential on the transfer of jurisdiction to SACAT.

110—Amendment of section 42—ECT

The amendments to this section are consequential on the transfer of jurisdiction to SACAT.

111—Amendment of section 43—Neurosurgery for mental illness

The amendments to this section are consequential on the transfer of jurisdiction to SACAT.

112—Amendment of section 46—Copies of Tribunal's orders, decisions and statements of rights to be given

The amendments to this section are consequential on the transfer of jurisdiction to SACAT.

113—Amendment of section 48—Patients' right to communicate with others outside treatment centre

The amendments to this section are consequential on the transfer of jurisdiction to SACAT.

114—Amendment of section 70—Transfer from South Australian treatment centres

The amendments to this section are consequential on the transfer of jurisdiction to SACAT.

115—Repeal of heading to Part 11 Division 1

The amendments to this section are consequential on the transfer of jurisdiction to SACAT.

116—Amendment of section 79—Reviews of treatment orders and other matters

This clause makes consequential amendments and clarifies that although the word 'review' is used, reviews by SACAT under this section are an exercise of SACAT's original jurisdiction.

117—Amendment of section 80—Decisions and reports on reviews of treatment orders

The amendments to the Act in this clause are consequential on the transfer of jurisdiction to SACAT.

118—Repeal of heading to Part 11 Division 2

This amendment is consequential on the amendments to section 81.

119—Amendment of section 81—Reviews of orders (other than Tribunal orders)

The amendments to this section are consequential on the transfer of jurisdiction to SACAT and to ensure the consistent use of the terms 'review' and 'appeal' in accordance with the SACAT Act. A review under this section will fall within the original jurisdiction of SACAT.

120—Repeal of section 82

This clause deletes section 82 which is not required, as the relevant provisions of the SACAT Act will apply.

121—Amendment of section 83—Review of directions for transfer of patients to interstate treatment centres

The amendments to this section are consequential on the transfer of jurisdiction to SACAT and to ensure the consistent use of the terms 'review' and 'appeal' in accordance with the SACAT Act.

122—Substitution of sections 84 and 85

This clause replaces sections 84 and 85 which deals with representation and appeals and inserts new Part 11A.

83A—Reviews and appeals

The proposed new section sets out who may make an application for an internal review of a decision by SACAT, in addition to matters in relation to costs and appeals of the Tribunal's decision to the Supreme Court.

84—Representation on reviews or appeals

This proposed new section sets out the ability of a person to be represented in relation to a review or appeal.

Part 11A—Special provisions relating to Tribunal

85—Tribunal must give notice of proceedings

The proposed new section sets out the notice requirements in relation to SACAT proceedings, and allows for matters to be dealt with urgently.

85A—Reasons for decisions

This proposed section provides that SACAT must provide reasons for the Tribunal's decision to certain persons on request and sets out the time in which the request must be made.

85B—Representation of person who is subject of proceedings

In addition to the provisions that deal with representation set out in the South Australian Civil and Administrative Tribunal Act 2013, the proposed new section provides that a person may be represented in Tribunal proceedings under this Act by the Public Advocate or (except for internal reviews) a recognised advocate, who is defined to be someone recognised by SACAT to be qualified to act as an advocate for the person.

123—Amendment of section 101—Errors in orders etc

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

124—Amendment of section 107—Prohibition of publication of reports of proceedings

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

125—Amendment of section 108—Requirements for notice to Tribunal or Chief Psychiatrist

The amendments to this section substitute references to the Board with references to the Tribunal and are consequential on the transfer of jurisdiction to SACAT.

126—Transitional provisions

This clause sets out the transitional provisions in relation to the transfer of jurisdiction from the Guardianship Board to SACAT. The effect of the provisions is to transfer any proceedings before the Guardianship Board to SACAT to proceed as if they had been commenced before SACAT, and any right to make an application to the Guardianship Board that existed before these amendments may now be exercised by making an application to SACAT. It also preserves the effect of an order, consent or decision of the Board, which will be taken to be those of SACAT.

Part 11—Amendment of Public Sector Act 2009

127—Amendment of section 3—Interpretation

This clause makes consequential amendments to insert a definition of 'decision' (so that it has an equivalent meaning to that in the SACAT Act) and to insert a definition of 'Tribunal' as being a reference to SACAT. It also removes the definition of Public Sector Grievance Review Commission, which is no longer required as it is being replaced by SACAT.

128—Amendment of section 25—Public Service employees

This is a consequential amendment to remove the reference to the Public Sector Grievance Review Commission.

129—Amendment of section 49—Remuneration

This is a consequential amendment to remove the reference to the Public Sector Grievance Review Commission and substitute a reference to SACAT.

130—Amendment of section 62—External review

Section 62 provides for an aggrieved employee to apply for the review by 'an appropriate review body' of an employment decision of a public sector agency that directly affects the employee. This clause makes a consequential amendment to remove the reference to the Public Sector Grievance Review Commission and substitute a reference to SACAT in the definition of 'appropriate review body'. This clause also inserts a new subsection to provide that section 71 of the SACAT Act (which provides for appeals against a decision of SACAT to the Supreme Court) does not apply to a decision of SACAT where it is the body that conducts the review under section 62, which maintains the current position under the Act.

131—Substitution of Schedule 2

Schedule 2 of the Act relates to the establishment and proceedings of the Public Sector Grievance Review Commission and the nomination of panel members. This clause deletes the current Schedule 2 as a consequence of removing this Commission and substituting SACAT.

Schedule 2—Special provisions relating to Tribunal

The substituted Schedule 2 provides for the nomination of a panel of public sector employees for the purposes of SACAT proceedings in a similar manner to the current Act in relation to Public Sector Grievance Review Commission proceedings. The Schedule also sets out particular requirements for the constitution of SACAT for the purposes of proceedings under this Act.

132—Transitional provisions

This clause sets out the transitional provisions that provide that a right for a review of a decision by the Public Sector Grievance Review Commission that existed before the commencement of these amendments (but which has not yet been exercised) is to be exercised instead by commencing proceedings before SACAT. However, any proceedings before the Commission commenced before these amendments come into operation will not be affected. The transitional arrangements also provide for the Public Sector Grievance Review Commission to be dissolved by the Governor by proclamation and that members of the Commission or panel constituted for the purposes of Commission proceedings will cease to hold office at that time.

Part 12—Amendment of Residential Parks Act 2007

133—Amendment of section 3—Interpretation

This clause makes consequential amendments to various definitions so that the references to bailiffs, the President and Deputy President, and the Registrar and Deputy Registrar align with those persons who hold these offices under the SACAT Act rather than the equivalent officers of the Residential Tenancies Tribunal. It also substitutes the meaning of 'Tribunal' to refer to SACAT rather than the Residential Tenancies Tribunal.

134—Amendment of section 87—Enforcement of orders for possession

Section 87 of the Act provides for the enforcement of orders for possession made by the Residential Tenancies Tribunal by bailiffs. This clause makes consequential amendments to this section to provide for the enforcement by bailiffs, in a similar manner, in relation to orders for possession made by SACAT.

135—Substitution of heading to Part 11

This is a consequential amendment.

136—Repeal of Part 11 Divisions 1 and 2

This clause deletes Divisions 1 and 2 of Part 11, which relate to the Residential Tenancies Tribunal as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 will be relied upon.

137—Amendment of section 103—Jurisdiction of Tribunal

This is a consequential amendment to ensure that a court can exercise the relevant powers of SACAT under the South Australian Civil and Administrative Tribunal Act 2013, as well as this Act in relation to proceedings brought before the court should they exceed the jurisdictional limits of SACAT as set out in this section.

138—Repeal of section 104

This section, which provides for the procedure in relation to applications made under the Act to the Residential Tenancies Tribunal is being deleted as it is no longer required. The South Australian Civil and Administrative Tribunal Act 2013 and the Rules made under that Act will apply in relation to applications to SACAT.

139—Substitution of heading to Part 11 Division 4

This amendment is consequential.

140—Repeal of Sections 105 to 109

These sections, which provide for prescribed matters before the Tribunal to be referred for mediation by the Commissioner for Consumer Affairs, are being deleted because the mediation process set out in the South Australian Civil and Administrative Tribunal Act 2013 will apply.

141—Amendment of section 110—Representation of parties in mediation

This amendment retains the substance of this section, which provides for the representation of parties in mediation, and applies it to matters referred for mediation by SACAT.

142—Repeal of section 111

This section, which deals with evidence obtained in the course of mediation, is not required as a similar provision of the South Australian Civil and Administrative Tribunal Act 2013 will apply.

143—Substitution of Part 11 Division 6

The sections in this Division provide for the procedural and evidentiary powers of the Residential Tenancies Tribunal and are no longer required as the South Australian Civil and Administrative Tribunal Act 2013 sets out the procedural and evidentiary powers of SACAT. The only provision to be retained is current section 115(2) which is renumbered as section 113. As a consequence the heading of the Division has been amended to reflect the content of proposed section 113.

144—Amendment of section 117—Special powers to make orders

This clause makes a consequential amendment to subsection (2) and deletes those subsections not required on the basis that they are covered by the provisions of the South Australian Civil and Administrative Tribunal Act 2013.

145—Repeal of section 120

This section, which provides for the enforcement of orders of the Residential Tenancies Tribunal by registering it in an appropriate court, is no longer required as the provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply.

146—Amendment of section 121—Application to vary or set aside order

The amendments to this section retain the ability to apply to the Tribunal to vary or set aside an order, but changes the time within which the application must be made to within 1 month of the order (instead of 3 months) and inserts new subclause (3), so that the time for making such an application runs only from when written reasons for the decision (if requested following the decision) are provided. These amendments are consistent with recent amendments to a similar provision in the Residential Tenancies Act 1995. This clause also inserts new subclauses (4) and (5) to clarify that this section does not limit the provisions of the South Australian Civil and Administrative Tribunal Act 2013 and that proceedings under this section are not intended to constitute a review for the purposes of section 34 or 70 of that Act.

147—Repeal of section 122

Section 122 of the Act is being deleted as the provisions of the South Australian Civil and Administrative Tribunal Act 2013 in relation to costs will apply.

148—Substitution of section 123

This clause substitutes section 123 and inserts a new section 123A.

123—Reasons for decisions

The current section 123 provides for a person affected by a decision of the Residential Tenancies Tribunal to be provided with written reasons if requested. The substituted clause 123 makes a similar provision in relation to a decision of SACAT.

123A—Time for application for review or instituting appeal

This clause makes clear that the time for making an application for a review or appeal under the South Australian Civil and Administrative Tribunal Act 2013 runs from the time written reasons are provided if the request is made within 1 month of the decision. This is similar to the provision in current section 125(3) of the Act which is being deleted by this measure.

149—Repeal of Part 11 Division 9

This Division provides for the reservation of questions of law and appeals in relation to Residential Tenancy Tribunal proceedings. These provisions are being deleted as the provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply.

150—Amendment of section 126—Representation in proceedings before Tribunal

This amendment makes clear that the provisions as to representation of the parties currently set out in this section also applies to a conference or mediation under the South Australian Civil and Administrative Tribunal Act 2013.

151—Repeal of Part 11 Division 11

This Division provides for various procedural powers of the Residential Tenancies Tribunal (such as entry and inspection of property and contempt of the Tribunal) which are no longer required as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply.

152—Transitional provisions

This clause sets out the transitional provisions in relation to any proceedings that may have been commenced before the Residential Tenancies Tribunal under the Act. The effect of the provisions is, (subject to the directions of the President of SACAT), to transfer any proceedings before the Residential Tenancies Tribunal to SACAT to proceed as if they had been commenced before SACAT. Any decisions, directions or orders of the Residential Tenancies Tribunal made before the commencement of this measure will be taken to be decisions, directions or orders of SACAT. Any right to make an application to the Residential Tenancies Tribunal that existed before the amendments to the Act by this measure, may now be exercised by making an application to SACAT. The transitional provisions also allow for SACAT to receive any evidence before the Residential Tenancies Tribunal and adopt any of its findings, decisions or orders where relevant (including in relation to proceedings that are fully heard), and to take such other steps to ensure the smooth transition of the proceedings to SACAT. Nothing in this clause affects the ability to register an order under section 120 of the Act, or to appeal to the District Court, in relation to orders, decisions or directions of the Residential Tenancies Tribunal made before the commencement of the amendments to the Act by this measure.

Part 13—Amendment of Residential Tenancies Act 1995

153—Amendment of section 3—Interpretation

This clause inserts and makes consequential amendments to various definitions to ensure that the references to bailiffs, the President and Deputy President, and the Registrar and Deputy Registrar refer to those persons who hold these offices under the South Australian Civil and Administrative Tribunal Act 2013 rather than as part of the Residential Tenancies Tribunal. It also substitutes the meaning of 'Tribunal' to refer to SACAT rather than the Residential Tenancies Tribunal.

154—Amendment of section 5—Application of Act

This amendment is consequential and substitutes the reference to the Residential Tenancies Tribunal with a reference to SACAT.

155—Substitution of heading to Part 3

This amendment is consequential.

156—Repeal of Part 3 Divisions 1 and 2

This clause deletes Division 1 of Part 3 which sets up the Residential Tenancies Tribunal and provides for the appointment of its members and the Registrar. It also deletes Division 2 of Part 3 which provides for procedural matters before the Residential Tenancies Tribunal. This is no longer required as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply.

157—Amendment of section 24—Jurisdiction of Tribunal

The amendment to section 24(1)(c) is consequential and the amendment to section 24(4) is to ensure that a court can exercise the relevant powers of SACAT under the South Australian Civil and Administrative Tribunal Act 2013, as well as this Act, in relation to proceedings brought before the court should they exceed the jurisdictional limits of SACAT as set out in this section.

158—Substitution of section 25

This clause substitutes the current section 25 as the provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply to applications under this Act. It also inserts new section 25A.

25—Application to Tribunal

This clause retains the effect of section 25(3) of the Act which is being substituted by this clause. It provides that a requirement to give notice of an application under the Act may be directed to an occupier or subtenant of the premises and need not address the occupier or subtenant by name.

25A—Registrar may make orders in certain cases

This clause retains the effect of section 16 of the Act which is being repealed by this measure. It provides that the Registrar or a Deputy Registrar of SACAT may make an order in relation to a tenancy dispute with the written consent of the parties. Such an order will operate as an order of the Tribunal.

159—Substitution of heading to Part 3 Division 5

This amendment is consequential.

160—Repeal of section 31

This section provides for the power of the Residential Tenancies Tribunal to gather evidence and is no longer required as the South Australian Civil and Administrative Tribunal Act 2013 sets out the evidentiary powers of SACAT.

161—Amendment of section 32—Intervention of designated housing agency

This clause amends this section to remove those procedural powers of the Residential Tenancies Tribunal that are no longer required because they are set out in the South Australian Civil and Administrative Tribunal Act 2013 in relation to SACAT. The provisions in relation to the intervention of a designated housing agency in SACAT proceedings are retained.

162—Substitution of section 33

The effect of this amendment is to delete subsection (1) of this section, which is covered by the South Australian Civil and Administrative Tribunal Act 2013 and retain the content of current subsection (2).

163—Substitution of heading to Part 3 Division 7

This clause is consequential.

164—Amendment of section 35—Special powers to make orders

This clause makes a consequential amendment to subsection (2) and deletes those subsections not required on the basis that they are covered by the provisions of the South Australian Civil and Administrative Tribunal Act 2013.

165—Repeal of section 36

This section, which provides for the enforcement of orders of the Residential Tenancies Tribunal by registering it in an appropriate court, is no longer required as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply.

166—Amendment of section 37—Application to vary or set aside order

This clause inserts new subsections (4) and (5) to clarify that this section (which relates to the ability for a party to proceedings before SACAT to apply to vary or set aside an order made in the proceedings), does not limit the provisions of the South Australian Civil and Administrative Tribunal Act 2013 and that proceedings under this section are not intended to constitute a review for the purposes of section 34 or 70 of that Act.

167—Repeal of section 38

Section 38 of the Act is being deleted as the provisions of the South Australian Civil and Administrative Tribunal Act 2013 in relation to costs will apply.

168—Substitution of section 39

This clause substitutes section 39 and inserts a new section 39A.

39—Reasons for decisions

The current section 39 provides for a person affected by a decision of the Residential Tenancies Tribunal to be provided with written reasons if requested. The substituted clause 39 makes a similar provision in relation to a decision of SACAT.

39A—Time for application for review or instituting appeal

This clause makes clear that the time for making an application for a review or appeal under the South Australian Civil and Administrative Tribunal Act 2013 runs from the time written reasons are provided if the request is made within 1 month of the decision. This is similar to the provision in current section 41(4) of the Act which is being deleted by this measure.

169—Repeal of Part 3 Divisions 9 and 10

Division 9 of Part 3 provides for the reservation of questions of law and appeals in relation to Residential Tenancy Tribunal proceedings. These provisions are being deleted as the provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply. Division 10 provides for various procedural powers of the Residential Tenancies Tribunal (such as entry and inspection of property and contempt of the Tribunal) which are no longer required as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply.

170—Substitution of heading to Part 5 Division 8

This amendment is consequential.

171—Repeal of section 98

This section, which provides for the appointment of bailiffs, is not required as this is provided for by the South Australian Civil and Administrative Tribunal Act 2013. (The provisions in relation to bailiffs are being inserted by amendment to the South Australian Civil and Administrative Tribunal Act 2013 by Part 15 of this measure.)

172—Amendment of section 99—Enforcement of orders for possession

The amendments to this section, which provides for the enforcement of orders of SACAT for possession, are consequential. Subsection (8) is to be deleted as the protection of bailiffs from civil or criminal liability in carrying out their functions will be addressed by the amendments to the South Australian Civil and Administrative Tribunal Act 2013 in Part 15 of this measure.

173—Amendment of section 101—Application of income

This amendment is of a consequential nature to maintain the current position and is required because SACAT will have proceedings instituted under numerous other Acts and not just those currently dealt with by the Residential Tenancies Tribunal.

174—Amendment of section 106—Definitions

This amendment is consequential on the deletion of section 108(2).

175—Amendment of section 107—Conciliation of dispute by Commissioner

These amendments are consequential. There is provision under the South Australian Civil and Administrative Tribunal Act 2013 for more than 1 Deputy Registrar.

176—Repeal of Part 8 Division 1 Subdivision 3

This Subdivision provides for the referral of a tenancy dispute by the Residential Tenancies Tribunal to a conciliation conference. This is no longer required as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 in relation to conferences and mediation required by SACAT will apply.

177—Amendment of section 108A—Functions of Commissioner in conciliation of dispute

This amendment is consequential on the amendments that limit the provisions on conciliation conferences to those referred to the Commissioner of Consumer Affairs under this Act.

178—Amendment of section 108B—Procedure

The amendments to this section limit the reference to 'conciliator' to apply only to conciliation conferences conducted by the Commissioner for Consumer Affairs. The provisions that relate to conferences conducted by SACAT are set out in the South Australian Civil and Administrative Tribunal Act 2013.

179—Amendment of section 113—Representation

This clause amends this section to ensure that the provisions relating to the representation of parties apply to conferences and mediation under the South Australian Civil and Administrative Tribunal Act 2013.

180—Amendment of section 114—Remuneration of representative

This clause amends this section to ensure that the provisions relating to the remuneration of representatives of parties apply to representation at conferences and mediation under the South Australian Civil and Administrative Tribunal Act 2013.

181—Transitional provisions

This clause sets out the transitional provisions in relation to any proceedings that may have been commenced before the Residential Tenancies Tribunal under the Act. The effect of the provision is (subject to the directions of the President of SACAT) to transfer any proceedings before the Residential Tenancies Tribunal to SACAT to proceed as if they had been commenced before SACAT. Any right to make an application to the Residential Tenancies Tribunal that existed before the amendments to the Act by this measure, may now be exercised by making an application to SACAT. The transitional provisions also allow for SACAT to receive any evidence before the Residential Tenancies Tribunal and adopt any of its findings, decisions or orders where relevant (including in relation to proceedings that are fully heard), and to take such other steps to ensure the smooth transition of the proceedings to SACAT. Any decisions, directions or orders of the Residential Tenancies Tribunal made before the commencement of this measure will be taken to be decisions, directions or orders of SACAT. Nothing in this clause affects the ability to register an order under section 36 of the Act, or to appeal to the District Court, in relation to orders, decisions or directions of the Residential Tenancies Tribunal made before the commencement of the amendments to the Act by this measure. This clause also dissolves the Residential Tenancies Tribunal and provides that members of the Residential Tenancies Tribunal will cease to hold office at that time. Any contract of employment, agreement or arrangement in relation to the office held by a member is also terminated and there is no right of action against the Minister or the State in relation to that termination.

Part 14—Amendment of Retirement Villages Act 1987

182—Amendment of section 3—Interpretation

This clause amends section 3 to include definitions so that the references to bailiffs, the President and Deputy President refer to those persons who hold these offices under the South Australian Civil and Administrative Tribunal Act 2013 rather than the equivalent officers of the Residential Tenancies Tribunal. It also substitutes the meaning of 'Tribunal' to refer to SACAT rather than the Residential Tenancies Tribunal.

183—Amendment of section 31—Termination of residents' rights

This clause makes a consequential amendment to section 31 as 'bailiff' is now defined in section 3 of the Act.

184—Amendment of section 32—Resolution of disputes

This clause removes section 32(3) to (5) (which deal with the arbitration of a dispute), as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply instead. This clause also inserts a new subsection (3) to retain the requirement of the current Act that the express consent of the parties is required before a matter is referred by the Tribunal for mediation. This overrides section 51(3) of the South Australian Civil and Administrative Tribunal Act 2013 which provides that a referral may be with or without the consent of the parties. Subsections (6)(b), (7), (10) and (11) are deleted as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply. New subsection (8a) is being inserted to ensure consistency with the equivalent provisions in the Residential Tenancies Act 1995 and Residential Parks Act 2007, such that an order of the Tribunal that provides for a remedy in the nature of an injunction or specific performance may only be made with the approval of the President or a Deputy President of the Tribunal. The deletion of subsection (13)(b) is consequential on the deletion of the provisions of the Act dealing with the conciliation of a dispute.

185—Repeal of section 39

Section 39, which provides for the appeal of a decision of the Tribunal to the District Court, is being deleted as the relevant appeal provisions in the South Australian Civil and Administrative Tribunal Act 2013 will apply.

186—Amendment of Schedule 1—Proceedings before Tribunal

The current Schedule 1 of the Act sets out the provisions in relation to proceedings before the Residential Tenancies Tribunal under the Act. This clause amends those provisions to apply to SACAT and takes into account the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013. Clause 3, which provides for a party to apply for the variation or setting aside of an order of the Tribunal, is amended to be consistent with the equivalent provisions in the Residential Tenancies Act 1995 and Residential Parks Act 2007. Such an application must be made within 1 month of the order being made and does not constitute a review for the purposes of sections 34 and 70 of the South Australian Civil and Administrative Tribunal Act 2013. Clauses 4, 5, 7 and 8 (which deal with Tribunal applications, the procedural powers of the Tribunal, conciliations and costs) are deleted as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply. The amendment to clause 9 reflects the fact that the relevant section of the South Australian Civil and Administrative Tribunal Act 2013 in relation to the referral of a question of law to the Supreme Court will apply, but retains the current provision of the Act in relation to costs in relation to such a referral.

187—Transitional provisions

This clause sets out the transitional provisions in relation to any proceedings that may have been commenced before the Residential Tenancies Tribunal under the Act. The effect of the provisions is, (subject to the directions of the President of SACAT), to transfer any proceedings before the Residential Tenancies Tribunal to SACAT to proceed as if they had been commenced before SACAT. Any decisions, directions or orders of the Residential Tenancies Tribunal made before the commencement of this measure will be taken to be decisions, directions or orders of SACAT. Any right to make an application to the Residential Tenancies Tribunal that existed before the amendments to the Act by this measure, may now be exercised by making an application to SACAT. The transitional provisions also allow for SACAT to receive any evidence before the Residential Tenancies Tribunal and adopt any of its findings, decisions or orders where relevant (including in relation to proceedings that are fully heard), and to take such other steps to ensure the smooth transition of the proceedings to SACAT. Nothing in this clause affects the right to appeal to the District Court (as the right existed before the repeal of section 39 of the Act), in relation to orders, decisions or directions of the Residential Tenancies Tribunal made before the commencement of the amendments to the Act by this measure.

Part 15—Amendment of South Australian Civil and Administrative Tribunal Act 2013

188—Amendment of section 33—Original jurisdiction

This amendment is consequential on the amendment to section 34 and also clarifies the action of the Tribunal in the exercise of its original jurisdiction, depending on the nature of the proceedings.

189—Amendment of section 34—Decisions within review jurisdiction

This clause amends section 34 to clarify that for the purposes of the exercise of SACAT's review jurisdiction a reviewable decision is a decision made by the Crown, or an agency or instrumentality of the Crown. However, the provision also allows for flexibility by providing that the regulations can prescribe decisions or classes of decisions or decisions made by prescribed persons or bodies to also fall within, or be excluded from, the Tribunal's review jurisdiction. These may instead fall within the original jurisdiction of SACAT.

190—Amendment of section 39—Principles governing hearings

This clause substitutes section 39(1)(b) in order to clarify that SACAT may adopt any findings, decision or judgment of a court or other tribunal if it considers it relevant to the SACAT proceedings.

191—Amendment of section 43—Practice and procedure generally

This amendment to section 43 clarifies that SACAT may proceed with hearing a matter if a party is not present.

192—Amendment of section 53—Parties

This clause inserts a new paragraph in section 53(1) to make it clear that a person who is a respondent to an application, or a person against whom a claim is being made, or a person who is a party to a dispute before the Tribunal, will be taken to be a party to the proceedings before SACAT.

193—Amendment of section 70—Internal reviews

This clause amends section 70 to enable a decision made by a registrar or other staff member of the Tribunal to be subject to the internal review process under this section. An application for review of a registrar's decision is only with leave of a Presidential member of the Tribunal.

194—Amendment of section 71—Appeals

This clause amends section 71 of the Act which deals with the ability to appeal decisions of SACAT to the Supreme Court. Section 71(1) provides for the constitution of the Supreme Court as either a single judge or the Full Court depending on the circumstances. The amendment to insert new subsection (1a) ensures that the Supreme Court Rules may provide for the Court to be constituted differently to that contemplated by subsection (1). New subsection (2a) provides that before a decision made by SACAT exercising its original jurisdiction, or a decision made by the Tribunal constituted by a registrar or other staff member, can be appealed to the Supreme Court, there must first be an internal review of the decision under section 70 of the Act. The need for an internal review is subject to any Supreme Court Rules, regulations, provisions of a relevant Act, or determination of the President of the Tribunal. The requirement that an appeal of a decision is only by leave of the Court is maintained. New subsection (3a) provides that an appeal to the Supreme Court under section 71 is by way of rehearing and new subsection (3b) makes it clear that the Court may draw inferences of fact from evidence or material before the Tribunal and allow further evidence or material to be presented to it in conducting the appeal. The amendment to subsection (4)(c) removes the ability of the Court to substitute a new decision but retains the ability of the Court to set aside the decision and return the matter to SACAT for reconsideration in accordance with any directions of the Court.

195—Amendment of section 79—Immunities

This clause amends section 79(5) in order to ensure that the protection and immunity provided by this section extends to a person who produces books, papers or documents to the Tribunal.

196—Insertion of section 89A

This clause inserts new section 89A

89A—Bailiffs

This new section provides for the appointment of bailiffs by the President and provides that a bailiff may (but need not be) a public servant or a person appointed under the Courts Administration Act 1993 or the Sheriff's Act 1978. In the exercise of his or her functions, a bailiff is given similar protection and immunity against civil or criminal liability as that of the staff of the Tribunal. This section also provides that the regulations may prescribe fees to be paid in relation to action taken by a bailiff.

197—Amendment of section 92—Annual report

This clause inserts a new subsection to provide for the regulations to prescribe information that must be included in the annual report of the Tribunal to be provided to the Attorney-General.

198—Insertion of section 93A

This clause inserts new section 93A.

93A—Disrupting proceedings of Tribunal

This new section makes it an offence for a person to wilfully interrupt Tribunal proceedings, behave in a disorderly or offensive manner or use offensive language.

199—Amendment of section 95—Regulations

This clause amends the regulation making power in the Act to ensure that the regulations may make provisions of a saving or transitional nature in relation to the vesting of jurisdiction in the Tribunal under another Act and such regulations may operate retrospectively.

Part 16—Amendment of South Australian Housing Trust Act 1995

200—Amendment of section 32A—Interpretation

This amendment removes the definition of 'Appeal Panel' and inserts the definition of 'Tribunal' to mean SACAT. It also makes clear that a complaint about a matter that is before SACAT in the exercise of its jurisdiction under another Act is excluded from the operation of Part 3A of the Act.

201—Repeal of section 32B

This clause deletes section 32B which establishes the Housing Appeal Panel and sets out other provisions in respect of the Panel.

202—Amendment of section 32D—Appeals

This clause makes consequential amendments to those provisions of section 32D being retained to substitute references to the Appeal Panel with references to the Tribunal (SACAT). It deletes subsections (3) to (5) which deal with procedural matters in relation to the Appeal Panel as the relevant provisions of the South Australian Civil and Administrative Tribunal Act 2013 will apply instead. This clause also inserts new subsection (9) which provides that section 71 of the South Australian Civil and Administrative Tribunal Act 2013 will not apply to a decision of the Tribunal under section 32D. This maintains the current position under the South Australian Housing Trust Act 1995, where there is no statutory right of appeal of Housing Appeal Panel decisions to the Supreme Court.

203—Transitional provisions

This clause sets out the transitional provisions in relation to any proceedings that may have been commenced before the Housing Appeal Panel under the Act. The effect of the provisions is, (subject to the directions of the President of SACAT), to transfer any proceedings before the Housing Appeal Panel to SACAT to proceed as if they had been commenced before SACAT. Any decisions, directions or orders of the Appeal Panel made before the commencement of this measure will be taken to be decisions, directions or orders of SACAT. Any right to make an application to the Housing Appeal Panel that existed before the amendments to the Act made by this measure, may be exercised by making an application to SACAT. The transitional provisions also allow for SACAT to receive any evidence before the Housing Appeal Panel and adopt any of its findings, decisions or orders where relevant (including in relation to proceedings that are fully heard), and to take such other steps to ensure the smooth transition of the proceedings to SACAT. This clause also dissolves the Housing Appeal Panel and provides that members of the Housing Appeal Panel will cease to hold office at that time. Any contract of employment, agreement or arrangement in relation to the office held by a member is also terminated and there is no right of action against the Minister or the State in relation to that termination.

Debate adjourned on motion of Hon. T.J. Stephens.