Statutes Amendment (SACAT) Bill

Final Stages

Consideration in committee of the House of Assembly's message.

(Continued from 19 November 2014.)

Amendments Nos 5 and 6:

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

That the council do not insist on its amendments Nos 5 and 6, but makes the following alternative amendment:

Clause 98, page 36, lines 13 to 17—Delete subclause (10) and substitute:

(10) A member of the Guardianship Board holding office when subsection (9) comes into operation will case to hold office at that time.

The amendment is related to amendments Nos 13, 14, 16 and 17. As the chamber is aware, the Hon. Mr Darley successfully moved amendments to preserve any right of action against a minister for the payment of compensation on account of the early termination of a contract of a member of an existing board or tribunal where the member has not been successful in securing an appointment as a member of the SACAT. It would apply to members holding office in the Residential Tenancies Tribunal, the Guardianship Board and the Housing Appeals Panel but not a commissioner of the Public Sector Grievance Review Commission.

The government made the decision not to roll over existing board and tribunal members into SACAT, instead calling for applications for membership based on merit-based recruitment process. Whether existing members holding office accepted the offer to apply was and remains a personal decision on their part. As the Attorney-General indicated, not all current members holding office did apply for a position in the SACAT.

The government's position is that the rights to remuneration arising from the instrument of appointment do not survive the dissolution of the board. The words of the government bill sought to prevent a claim asserting otherwise from being brought, and thus saving the expense of what the government considers might be a claim that would not succeed, nothing more.

It has become clear that the opposition and crossbenchers will not support this clause passing in its original form. Accordingly, in an effort to ensure the bill is passed and SACAT is established in 2015 the government has proposed this alternative amendment. It is proposed that it is the position of the government that the effect of this amendment if passed will be neither to extinguish nor enliven any right of action that a member of the Guardianship Board hold office when the Guardianship Board is dissolved may have as to any employment entitlements.

Accordingly, the bill will remain silent as to any cause of action that may or may not arise as a result of the termination of any contract of employment agreement or arrangement relating to the office formerly held by that member. The result of this will be that any right of action would be a matter for determination by the courts. On this basis, I urge members to support the government amendment and corresponding amendments applying to a member holding office at the Residential Tenancies Tribunal and the Housing Appeals Panel, at amendments Nos 13, 14, 16 and 17.

The Hon. M.C. PARNELL: I am conscious that some of the key people who have been involved in this clause are not in the chamber at the moment. I understand that they are on their way, so I might make a few observations while the Hon. John Darley gets here and while the Hon. Stephen Wade gets here. I have some questions of the minister as well.

Just to put this into context so that members are familiar with what we are talking about, the government has moved that we not insist on our amendment. The amendment that we supported was moved by the Hon. John Darley and it effectively said that notwithstanding that these bodies (the Guardianship Board and the Residential Tenancies Tribunal) were being abolished, effectively anyone who had a contract of employment did not lose the rights that they would have had had they been terminated without those bodies being abolished. That is, in straightforward terms, the way I understand the amendments that we all supported last time.

The way I described it, putting it even more simply, is: in the absence of this legislation, the government could not have ended those contracts of employment without being liable to some form of compensation. The only way that the government could have ended those contracts was if a trigger event had occurred; for example, the incumbent stopped coming to work, or the incumbent was convicted of some offence, or became insane, or whatever. Those triggers, for a five-year contract of employment—if we were not abolishing the Guardianship Board, for example, the government would not have been able to end that contract of employment without some liability to compensation. So, that is the starting point; that is the status quo.

When the minister says that the government is very keen not to 'extinguish or enliven' any rights, the SACAT bill as originally drafted does extinguish those rights. It extinguishes the rights because it extinguishes the bodies (the Residential Tenancies Tribunal and the Guardianship Board), and the way I have described it is that the executive is asking the parliament to do something that it could not do itself. The executive itself could not have ended a contract of employment without paying some compensation; they are asking the parliament to do it for them. That, I think, is where many of us in the Legislative Council baulked at it. Again, to put it really crudely, the parliament was being asked to do the executive's dirty work.

So, what I am uncertain about concerns the fact that the proposed words that the government seeks to insert are effectively a new subclause (10), which is really just the first sentence or the first part of the subclause (10) that we had originally agreed to, and gets rid of subclause (11). Subclause (11) was the one that basically continued the right to compensation that already existed were it not for the bill that we were debating. My question of the minister is: why does the government feel that these words do not reverse the intent of the amendments that the Legislative Council passed? It seems to me that all a new subclause (10) says is:

A member of the Guardianship Board holding office when subsection (9) comes into operation will cease to hold office at that time.

Effectively, we are back to where we started from. We are asking the parliament to effectively sack these people and end their employment with no right of compensation. My question of the minister is: am I incorrect in my analysis? Given the small number of people involved, why can we not leave the amendments as originally supported by the Legislative Council? Why do we need to remove the Darley amendments and replace them with something as uncertain as this?

The Hon. G.E. GAGO: I have been advised that the government considers it appropriate, given the discussions that have occurred to date, that the alternative is the courts dealing with these matters if action arises.

The Hon. M.C. PARNELL: I thank the minister. The minister may have in front of her a letter. The copy I have got was addressed to the Hon. John Darley, who I hope will join us soon, from David J Meyer, Barrister & Solicitor, who was asked to give advice to Mr Jeremy Moore, who is the outgoing President of the Guardianship Board. It is only a couple of sentences and I will read it onto the record and ask the minister for her response:

Dear Sir

I have been advising Mr Jeremy Moore in respect to issues arising with his position as President of the Guardianship Board.

Mr Moore has asked my advice in respect to the proposed clause 10 of the bill relating to the Guardianship and Administration Act, and in particular to the proposed clause 98(10) of the Statutes Amendment (SACAT) Bill 2014.

I have advised Mr Moore that I do not understand what the proposed clause 10 [subclause (10)] is meant to achieve, other than muddy the waters. Clause 98(9) of the bill provides for the dissolution of the Guardianship board. It follows that if the Board is dissolved, there is no position as President.

The ongoing position of the President would then have to be decided in accordance with the contract in existence, and any law that may be applicable. The Attorney has said that he has a Crown opinion that upon the dissolution of the Board, the State is not liable to compensate the President for the unexpired period of his contract. If that is correct, then the new proposed clause is unnecessary.

I would urge the independent members of the Legislative Council, and the Liberal party to adhere to their current position, which then leaves the government to sort out its liabilities in accordance with the current law.

My two questions of the minister are: firstly, if there is such a crown opinion, can we see it? Secondly, what is the response to this legal opinion?

The Hon. R.I. LUCAS: Mr Chair, I draw your attention to the state of the committee.

A quorum having been formed:

The Hon. G.E. GAGO: In relation to the first question about whether we received crown advice or not, I am advised that yes, we did.

The Hon. S.G. WADE: Sorry, Mr Chair, could we ask the minister to start again, please?

The Hon. M.C. PARNELL: You did not hear my question, that was the point. I read onto the record David Meyer's legal opinion, and I asked two questions. First of all, David Meyer refers to the fact that the Attorney had said that he has a crown opinion, and I asked if we could see that crown opinion. Secondly, I asked what the government's general response was to the David Meyer legal advice.

The Hon. G.E. GAGO: In relation to the first question, yes, we did receive crown advice. I am confident that the member knows that my answer to the second question is no, and I am quite confident that he understands the reason why. Obviously, the government will not disclose the nature or content of any legal advice that we are given, because it goes to the issue of waiving one's rights—or could go to that issue.

The Hon. S.G. WADE: Could I indicate to the minister that I am not at all interested in any legal advice in relation to the legal entitlements of any citizen in South Australia. What I am interested in is the legislation that is before this parliament and the impact that it might have. I would ask: has the government had any legal advice on the potential impact of this bill on the legal entitlements of South Australians generally?

The Hon. J.A. DARLEY: I apologise because I may be asking things that have already been asked, but if I ask them the minister can let me know. I have sought some advice on this matter which appears to indicate that those members holding office may not have an entitlement to compensation if these amendments are agreed to. Can the minister indicate whether the government has sought crown law advice on the effect of these compromise amendments? What is the government's understanding of the effect of these amendments? Specifically, can the minister also confirm for the public record that these compromise amendments do not affect or extinguish any entitlements to compensation or entitlements that may exist for members of the Guardianship Board, the Residential Tenancies Tribunal and the appeal tribunal?

The Hon. G.E. GAGO: I thank the Hon. John Darley for his questions. In relation to whether we received crown advice or not, yes, we have. Obviously, the government is not prepared to disclose the nature or content of any legal advice that we have received in relation to such matters because it goes to the issue of the potential to have our rights waived. I am also advised that it is the position of the government that the effect of this amendment, if passed, will be to neither extinguish nor enliven any right of action that a member of the Guardianship Board holding office when the Guardianship Board is dissolved may have.

As to any employment entitlements, accordingly, the bill will remain silent as to any cause of action that may or may not arise as a result of the termination of any contract of employment, agreement or arrangement relating to the office formerly held by that member. The result of this will be that any right of action would be a matter for determination by the courts. So, on this basis, we are obviously seeking the support of members.

The Hon. S.G. WADE: The minister is willing to give us that assurance. The parliament needs to know if that is an assurance on the basis of bureaucratic advice, political advice or legal advice, because the parliament might be much more concerned about passing legislation where it has only been offered political advice.

The Hon. G.E. GAGO: I am sure the honourable member will understand why I am answering the question in this way. That is, it is the government's view and, clearly, I am not prepared to go into any other further details for fear of it impacting on our ability to have our privilege waived.

The Hon. S.G. WADE: I am not comfortable with the minister's answer, because the minister seems to consistently want to focus on potential litigation. This is about considerations of this parliament and, if we are talking about legal professional privilege, I do not know if it even attaches to advice given to a minister in the passage of the parliament. I would not have thought that a parliamentarian would normally have their advice being able to be seized. The fact of the matter is that we are not asking about any litigation that may be threatened by any member. All we are asking is: what legal advice have we had about the impact of the bill that we are being expected to pass?

The Hon. G.E. GAGO: Unfortunately, I cannot reveal the nature of any legal advice.

The Hon. J.A. DARLEY: Can I just confirm that the effect of the amendment is consistent with the advice given?

The Hon. G.E. GAGO: I cannot give any further detail in relation to legal advice.

The Hon. B.V. FINNIGAN: I appreciate that the minister is trying to negotiate a minefield here in not wanting to indicate a government position in relation to something that may be a course of action in the future but, if I understand it correctly, I think she has indicated that, based on crown law advice, the Crown takes the view that the amendments passed by the Legislative Council do not obstruct or enliven any rights of persons who are members of the Guardianship Board. If that is the case, what is the basis of the opposition by the government?

The Hon. G.E. GAGO: Can you clarify that question? We are not sure we understand. Can you ask it again, please?

The Hon. B.V. FINNIGAN: My question was that if the government opposes the original amendments passed by the Legislative Council—that is, the government does oppose them—that is based on crown law advice that the provisions that the council passed do not enliven any rights or courses of action by current or past members of the Guardianship Board. What then is the basis for proposing the original amendments? Essentially, if the Crown takes the view that there is no legal effect, then what is the basis of opposition?

The Hon. G.E. GAGO: Firstly, you have made an assumption that it is based on legal advice. We cannot accept that for obvious reasons. I am not too sure of the rest the question; we are just trying to work through it.

The Hon. J.A. DARLEY: Once again I apologise, but when I came in I thought I heard reference to the fact that the Hon. Mark Parnell had read out the letter from David Meyer—

The Hon. S.G. Wade interjecting:

The Hon. J.A. DARLEY: To the Premier, okay. I am advised that the Attorney has had the opportunity to consider this letter. My questions are: could the minister advise what advice she has received in relation to this letter from the Attorney? In particular, what advice has the Attorney provided in relation to the suggestion that no mention was made of the fact that the government was contemplating abolishing the position in question, and that the successful applicant would not hold the position for five years? Secondly, could the minister also advise why it was that Mr Moore was not advised he would not hold the position of president for five years? Lastly, could the minister advise why the government did not seek to address this issue by seeking to amend, or at least flagging amendments to, the guardianship act prior to the appointment process?

The Hon. G.E. GAGO: Can I just clarify that the letter the Hon. Mark Parnell read onto the record was the letter of 19 November?

The Hon. J.A. DARLEY: The 13^th—sorry, 11 November.

The Hon. S.G. WADE: My understanding was the letter was the letter of the 19^th.

The Hon. M.C. PARNELL: For completeness, I should have said that the letter I read into Hansard was dated 19 November and it was addressed to the Hon. John Darley.

The Hon. G.E. GAGO: I have been advised that we have not seen that letter.

The Hon. J.A. DARLEY: Perhaps I will read the letter. The letter refers to the speeches made by the Attorney-General in the other place on 11 November and suggests that the matters referred to by the Hon. Mr Rau do not give a complete explanation of the true situation regarding Mr Moore's support for the SACAT. The letter was dated 13 November to the Premier. The letter provides:

Prior to the 11^th February 2013, an advertisement for the position of the President of the Guardianship Board was published in a newspaper, and advising that applications closed on 11^th February 2013. An application package was issued by the government of South Australia. The applicant is advised that the position of President is for a period of 5 years, and that the appointed person can only be removed from office on the grounds which are set out in section 9 of the Guardianship Act.

No mention is made of the fact that the government is contemplating abolishing the position, and that the successful applicant would not hold the position for 5 years. If that was a possibility that could arise with the establishment of a new tribunal, it would appear to be misleading if that information was not disclosed.

I am instructed by Mr Moore that at no time during the application and interview process was any mention made that the appointment may be terminated by the government within 5 years.

The letter goes on to provide:

Mr Rau advised parliament that the Act required the appointment to be made for 5 years. Clearly, it was in the power of the government to seek to amend the Guardianship Act to reduce the period of appointment for the President. If that had been done before applications for the position were sought in February 2013, there could be no ground for complaint. There is no basis for treating Mr Moore differently to any other applicant for the position, all of whom would have believed the appointment would be for a period of 5 years.

The Hon. G.E. GAGO: The plot thickens. I am advised that a similar letter to that which you have just read out, dated the 19^th, was sent to the Premier, dated 13 December. So, it is similar matters.

Members interjecting:

The Hon. G.E. GAGO: November. I am advised that in relation to that, the government's response is that references made to the recruitment process within the letter of 14 November 2014 are correct. The Guardianship and Administration Act, at section 7(3), sets out that the president must be appointed for a term of five years. As at this stage, no final decision had been reached as to whether or not a SACAT would be established. The recruitment process proceeded on the normal basis. As to Mr Moore's knowledge of the government's plan to establish a SACAT, I refer to the Attorney-General's comments in the other place on that issue.

The Hon. M.C. PARNELL: I will keep the show going here. I think that to a certain extent we have a mixture here of the legal and the moral. The minister is absolutely correct; if it says in the act that a person is to be appointed for five years, they have to be appointed for five years, but that does not mean that you need to hide from someone the fact that the job might not go for five years. Whilst I accept what the minister said, that a final decision had not been made about whether the job was going to go for five years or whether the SACAT would be formed, I do not believe that there was not already considerable work underway to create the ICAC and that the Guardianship Board was going to be the first cab off the rank.

An honourable member interjecting:

The Hon. M.C. PARNELL: SACAT, what did I say? Sorry, too many bills! I personally have no doubt that at the time they were interviewing and working out who should get this five-year contract that there was already work being done, and I think that whilst a final decision had not been made, deep down I think the people involved knew that this is probably not going to be a five-year job because we are going to have a SACAT.

That is just my perception of it and I am not at liberty to put on the record all of the hearsay information I have but that is certainly my understanding. So the question is, I guess, whilst it might have been an obligation to appoint for five years, what the government should have done is, that in the written contract of employment they could have put in a clause which said that, in the event that the position is abolished because the Guardianship Board is abolished, this is what happens.

They could have written that into a contract of employment and the government chose not to do it. Instead the government chose to just keep 'mum' and to allow someone—and we are starting to get into equity here I guess—to rely on the goodwill of a government, a written contract which was for a fixed five-year term which, it turns out, was never to be. So I come back to the principle that I started with: they could not have ended the position without compensation if not for the SACAT bill. In other words, if they just did not like someone anymore and decided to sack them, they would have had to go through some process and pay some compensation and, so, effectively, come back to where we started.

The parliament is being asked to do something that the executive itself could not have done. You could not have sacked the president of the Guardianship Board without compensation if not for the SACAT bill. We now have a SACAT bill and that does the job. It gets rid of the Guardianship Board, and it gets rid of the president. All the Legislative Council is saying is that, in terms of natural justice, anyone who does have the benefit—and I think we are talking about the written contracts of employment. I have had no shortage of people, the sessional ones who have lost their jobs as well, and I have had to say to them, 'I am sorry, you have not got a written contract of employment and you are not guaranteed any minimum hours of work.'

With the sessional people, whilst many of them work the same hours every week and they have their regular Tuesday and Thursday shift, it was never guaranteed, and so their rights are a bit trickier because whilst they might have had an expectation borne out of practice that they had two days a week work at the Residential Tenancies Tribunal or the Guardianship Board, they did not have it in writing, it was not guaranteed, and there is nothing to stop either of those bodies reducing their hours to zero and there is nothing they could do about it.

I think the big difference is—and certainly Mr Moore is the one who people have been talking about, and I do not know whether there are any others who had a written document signed with the words 'contract of employment' written on the top, you know, it looks like a contract, smells like a contract, tastes like a contract—that natural justice says that they should be in no worse position than if they had been prematurely removed from their post without SACAT being an influencing factor.

So whilst I appreciate that discussions are still underway, my current position is that I am not yet convinced. I have said publicly that in some ways I am a little bit astounded that such an important reform—and I think we are now all on board and we all want this new body to be established and yet it is dragging on for want of a fairly simple amendment and I cannot see why this should be delaying the passage of the entire bill. We just need the government to say on the record that the rights that contract holders would have had if their jobs had been prematurely cut short should still exist notwithstanding the bill, and if we can get that on the record we may be ready to go.

The Hon. G.E. GAGO: I have already outlined that, so I will not repeat myself. This will be a matter for the courts. If there is action taken, the matter would be sorted out in court. So, people's rights would be upheld in that way, and the government thinks that is a fair and reasonable way to have these matters settled.

The Hon. J.A. DARLEY: I have to admit that I am not completely satisfied either, and therefore I suggest that we report progress.

Progress reported; committee to sit again.