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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-11-15 Daily Xml
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Statutes Amendment (South Australian Employment Tribunal) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 November 2016.)

The Hon. J.A. DARLEY (17:33): I rise to put my contribution to this bill on the record. Whilst I have no problems with the transferral of many of the jurisdictions to the SA Employment Tribunal, I was very alarmed to see dust diseases matters moved to the SAET. The Nick Xenophon Team has worked long and hard on the matter of dust diseases and it is a matter about which I am very passionate.

South Australia has the best dust disease legislation in the country. It is fair and efficient and provides an opportunity for those suffering from mesothelioma to gain compensation. In consulting with stakeholders, a number of concerns were raised with the proposal to move dust disease matters to the SA Employment Tribunal, with the most worrying being that the rules of the SA Employment Tribunal may interfere with the manner in which dust disease matters are heard, and this will result in victims missing out.

To address these matters, I sought an urgent meeting between stakeholders and the Attorney-General, and I want to thank the Attorney for agreeing to meet so quickly. At these meetings the Attorney gave an undeniable assurance that he did not want the manner in which dust disease matters were heard to change.

In response to specific concerns regarding the rules of the SA Employment Tribunal perhaps being inadequate to hear dust disease matters, the Attorney's office provided the following response, which I want to read on to the record:

As you know, for several years dust disease actions have been heard at the Riverside complex by judges of the District Court who also hold commissions as judges of the Industrial Court of South Australia. These judges are now also Presidential Members of SAET. The proposed jurisdictional changes in the Bill reflect the success of these arrangements and the expertise of the Presidential members of SAET in dealing with dust disease matters.

Please note, however, that in the conferral of the dust diseases jurisdiction on SAET, it is not intended that there be any detrimental changes in practices and procedures, particularly no changes that would lead to additional costs and delays in resolving these highly sensitive matters.

I provide the following comments on the issues raised in your email.

a. SAET's current Rules relate only to the jurisdiction that it presently exercises, which is the jurisdiction in respect of workers compensation matters under the Return to Work Act 2014. The SAET Rules as they relate to SAET's proposed expanded jurisdiction under the Bill, including dust disease matters, have not yet been drafted. Your comments have been forwarded to SAET and will be taken into consideration by SAET during the drafting of the new Rules. Once a set of new Rules has been drafted, they will be circulated for feedback to interested parties. You will have a further opportunity to comment on the Rules at that time. It is the President of SAET's intention that the SAET Rules for dust disease matters will be broadly similar to the relevant current Rules of the District Court. This will ensure that dust disease matters continue to be heard and resolved as effectively and efficiently as possible.

b. Part 3 of the Bill will confer jurisdiction in respect of dust disease matters on the South Australian Employment Court (referred to as the 'Tribunal in Court Session' in the Bill). This Court may only be constituted of the Judges and Magistrates of SAET, except where it may be appropriate for other members of SAET, a registrar or other staff member of SAET to assist with the business of the Court. This exception is not likely to apply in respect of dust disease proceedings. It is expected that dust disease matters will be heard by the Judges of the Court, although this is fundamentally a decision for the President in individual cases.

While it is unlikely that dust disease matters would be considered appropriate to be heard by SAET's Conciliation Officers (to be referred to as 'Commissioners' on the commencement of the Bill), it will be a matter for the President or the Judge to whom a particular dust disease matter has been allocated, whether the matter could be resolved by conciliation or mediation and should be referred to SAET Commissioner for that purpose.

c. The transfer of the dust diseases jurisdiction to SAET should not lead to increased costs and delay. Under the bill, SAET will be expressly subject to the requirement in the Dust Diseases Act 2005 that dust disease matters have priority over less urgent matters and are dealt with as expeditiously as the proper administration of justice requires.

d. In respect of particular provisions in the Bill and in the SAET Act 2014 that you have identified, the following comments are provided:

The ability in ss22 and 70 to refer questions of law is a common power and a similar provision currently applies in respect of the District Court.

Part 3 of the Act will be amended by the Bill to recognise that SAET will exercise an original jurisdiction, which includes the jurisdiction that SAET will exercise in respect of dust disease matters.

In respect of s53(3) of the Act, as noted earlier, SAET's Rules in its expanded jurisdiction have not yet been drafted and your comments have been forwarded to SAET for consideration in the drafting of new Rules.

The SAET Act contains general provisions that are likely to be more relevant to some matters than others. It is not clear at this time that the power in s60 to refer a matter to a special referee will be utilised in dust disease matters. Similarly, it is not clear if the power in s83 in respect of the taking of evidence will be utilised in dust disease matters. although the convenience of being able to do so in appropriate cases is clear. Please note that in the exercise of any of its powers in respect of dust disease matters, SAET will be subject to the requirement for expeditious resolution of these matters.

Section 66 of the SAET Act as amended is unlikely to apply in respect of dust disease matters as they will be heard by Judges and Magistrates who are Presidential members of SAET.

There are no provisions currently in, or proposed for, the Dust Diseases Act 2005 in relation to Supplementary Panel Members. Hence, proposed s18A will not apply in respect of dust disease matters.

It can be expected that the power in proposed s83A will only be exercised when required in the proper administration of justice and subject to the over-arching requirement that SAET deal with dust disease matters as expeditiously as possible.

Thank you for bringing our attention to the typographical error in proposed s9(2) of the Dust Diseases Act 2005. This will be remedied.

I can advise you that the government proposes to move amendments to the bill with the effect that a decision of the South Australian Employment Court in a dust disease matter may be appealed direct to the Full Court of the Supreme Court and that section 67 of the SAET Act will not apply to those matters. I had drafted amendments to remove provisions relating to the Dust Diseases Act from this bill; however, in the light of undertakings given in person by the Attorney and in writing in the email above, I will not be following these amendments.

I believe in this instance the Attorney is acting in good faith; however, I will not hesitate to come back to this place to make changes should they be required in the future. I want to thank Terry Miller from the Asbestos Victims Association and Annie Hoffman from Turner Freeman Lawyers for their input on this matter and support in the second reading of the bill.

Debate adjourned on motion of Hon. J.M. Gazzola.

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