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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-09-18 Daily Xml
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Bills

South Australian Employment Tribunal (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. R.I. LUCAS (Treasurer) (15:28): Obtained leave and introduced a bill for an act to amend the South Australian Employment Tribunal Act 2014. Read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (15:29): I move:

That this bill be now read a second time.

The legislative amendments contained in the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2018 relate to the exercise of the jurisdiction of the South Australian Employment Tribunal to hear federal diversity jurisdiction matters and, secondly, to award compensation when convicting a person for a criminal offence.

The bill addresses the constitutional issue raised in the recent High Court decision of Burns v Corbett [2018] HCA 15. That decision applies to prevent bodies that are not courts of the state from exercising federal judicial power in relation to federal diversity matters, namely those in which the commonwealth, or a person suing or being sued on behalf of the commonwealth, is a party; or between states, between residents of different states, or between a state and a resident of another state.

It follows from the High Court decision that the South Australian Employment Tribunal can only exercise jurisdiction to decide matters involving federal diversity issues if the tribunal is a court of the state. However, the South Australian Employment Court is established under the South Australian Employment Tribunal Act 2014 as a part of the South Australian Employment Tribunal. The South Australian Employment Court is a court of the state and hence is capable of exercising federal diversity jurisdiction. The bill ensures that jurisdiction in relation to federal diversity matters is directly vested in the South Australian Employment Court.

The bill defines federal diversity jurisdiction by reference to sections 75(iii) and (iv) of the Australian constitution. These provisions are clear and self-explanatory and do not need further elaboration in the bill. An example of when the jurisdiction might arise in the South Australian Employment Tribunal is if an injured worker, or a disputant in industrial relations or other employment-related matters, were to move interstate to live with supporting family members.

This constitutional issue also arose in respect of the South Australian Civil and Administrative Tribunal (SACAT), in response to which parliament passed the Statutes Amendment (SACAT Federal Diversity Jurisdiction) Act 2018. However, that act and the present bill deal with the issue in a different way in view of the different characteristics of SACAT and the South Australian Employment Tribunal. The bill contains a number of consequential provisions, including to mitigate the risk of constitutional invalidity by not permitting the non-judicial supplementary panel members appointed to the South Australian Employment Tribunal to sit as part of the South Australian Employment Court in proceedings that involve federal diversity matters.

Some of the acts that confer jurisdiction on the South Australian Employment Tribunal enable the president to elect to constitute the tribunal with a judicial member and supplementary panel members to provide the South Australian Employment Tribunal with special industry or subject-matter expertise. These are the Equal Opportunity Act 1984, Education Act 1972, Technical and Further Education Act 1975, Fire and Emergency Services Act 2005, Public Sector Act 2009 and the Work Health and Safety Act 2012.

The bill also reinstates the monetary limit on compensation that could be awarded by a magistrate against a person convicted of a criminal offence, including an employment-related offence, formerly known as 'industrial offences'. Prior to 1 July 2017, the judiciary of the Magistrates Court were limited by legislation to ordering no more than $20,000 by way of compensation against defendants, including those convicted of industrial offences.

This monetary limit was inadvertently removed on 1 July 2017 when the jurisdiction over employment-related criminal offences was transferred from the Magistrates Court to the South Australian Employment Tribunal, where they are now dealt with by magistrates who are members of the South Australian Employment Tribunal rather than members of the Magistrates Court. The bill restores the limit as it applies to the South Australian Employment Tribunal's magistrates but allows larger awards of compensation to be made by the South Australian Employment Tribunal's judges. I commend the bill to members and seek leave to have the detailed explanation of clauses inserted into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal. The intention is for the measure to come into operation on the day on which it is assented to by the Governor.

Part 2—Amendment of South Australian Employment Tribunal Act 2014

3—Amendment of section 4—Relevant Acts prevail

This clause makes a consequential amendment to make sure that a relevant Act cannot override the provisions of proposed section 6AB.

4—Amendment of section 6A—Conferral of jurisdiction—criminal matters

This clause inserts proposed subsections (6a) and (7).

Proposed subsection (6a) provides that a magistrate of the South Australian Employment Court may not award by way of compensation under section 124 of the Sentencing Act 2017 more than $20,000 (or if a greater amount is prescribed under section 124(6)(c) of that Act—the prescribed amount).

The proposed changes to existing subsection (7) provide that if a magistrate of the South Australian Employment Court is of the opinion in any particular case that an award of compensation should be made that exceeds the limit applying under proposed subsection (6a), the magistrate may remand the defendant to appear for sentence before a judge of the South Australian Employment Court.

5—Insertion of section 6AB

This clause inserts proposed section 6AB.

6AB—Diversity proceedings

Proposed section 6AB provides that where a determination of a matter within the jurisdiction of the South Australian Employment Tribunal (SAET), or that would otherwise be within the jurisdiction of SAET, involves the exercise of federal diversity jurisdiction, the matter is to be dealt with by the Tribunal sitting as the South Australian Employment Court (the Employment Court). Federal diversity jurisdiction is defined to mean jurisdiction of a kind referred to in section 75(iii) and (iv) of the Commonwealth Constitution, whereby the High Court has jurisdiction over matters in which the Commonwealth is a party, or over matters arising between the States, residents of different States or between States and residents of another State. This clause refers to such proceedings before the Employment Court as diversity proceedings.

If, in a matter before the Tribunal not sitting as the Employment Court, the Tribunal is of the opinion that the determination of the matter involves, or may involve, the exercise of federal diversity jurisdiction, then the Tribunal must refer the proceedings to the Employment Court for determination. (This clause also refers to such proceedings as diversity proceedings). The matter may be remitted to SAET if the Employment Court is of the opinion that the matter does not involve the exercise of federal diversity jurisdiction.

In determining diversity proceedings the Employment Court may not be constituted of supplementary panel members. The Employment Court has the same jurisdiction, powers and functions in relation to the proceedings that the Tribunal (other than in Court Session) would have had if it could exercise federal diversity jurisdiction. The usual practices and procedures that apply to the Tribunal other than in Court Session will apply to the Employment Court unless, and to the extent, the Court determines otherwise.

The proposed clause also makes provision for the enforcement of purported orders (including monetary orders) of SAET, whether made before or after the commencement of the clause, that are invalid because determination of the proceedings that gave rise to the order involved the exercise of federal diversity jurisdiction. It also provides for proceedings in relation to the variation or revocation of such orders by the Employment Court (which are to be treated as 'diversity proceedings'). The clause also provides for immunity in relation to actions or purported actions taken pursuant to, or in relation to the enforcement of, a purported order or monetary order in good faith.

Debate adjourned on motion of Hon. E.S. Bourke.

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