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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-10 Daily Xml
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Bills

Statutes Amendment (Civil Enforcement) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 May 2021.)

The Hon. C. BONAROS (16:20): I understood that I was not speaking today, but I am happy to speak on the Statutes Amendment (Civil Enforcement) Bill 2021. We support most of the provisions of this bill, with some minor concerns that I will speak to in more detail when we consider the clauses in committee stage. I understand this bill arises from the recommendations of the review undertaken by the Courts Administration Authority and that these amendments are strongly supported by the Chief Justice.

The bill is clearly focused on trying to improve the enforcement of civil judgements that have been delivered by the courts. As such, it increases powers to pursue debtors and administrative efficiencies to expedite that pursuit. Several provisions are arguably potentially beneficial to debtors, including the new provision for the judgement creditor to serve an investigation notice on the debtor prior to issuing an investigations summons. This is aimed, I am told, at keeping the matter out of court, thus saving costs for all those parties.

Garnishee orders will now also be able to reach into a term deposit that has not yet matured, which apparently is somewhat unclear under the present legislation. This prevents the debtor attempting to put funds and assets beyond the reach of the garnishee order, by placing these into long-term deposits.

It is concerning that any costs and penalties associated with the early release of term deposit funds will be met by the debtor, who may already be in financial dire straits. There would ordinarily be some bank fees and costs of garnisheeing a mature term deposit but not the early payout penalties and early release fees this provision facilitates.

At present, the court can issue warrants of seizure and sale to meet debts identified in orders made by the court. I understand to do this the Sheriff must first establish what the debtor's proprietary interest and encumbrances are on joint property. At present, banks are refusing to disclose this information because it potentially breaches the non-debtor joint owner's privacy. This bill amends that so the bank will be required to disclose this information, irrespective of the non-debtor's and debtor's views.

This potentially puts the non-debtor party at risk of having their financial information or other private information disclosed without their consent. Again, I will ask some questions about this during the committee stage. It is something we have canvassed during the briefings, but as the non-debtor party is not the subject of the court order, it has the potential to be somewhat unfair. SA-Best would like to see some additional checks and balances to this provision to ensure that they are protected or there is some guarantee that they are protected.

A sensible enhancement of the bill is that the Sheriff will be able to direct a person to stay off land and remove them from land. They will also be able to request the police commissioner to provide the Sheriff with assistance in enforcing any judgement, such as seizing property. Importantly, those officers will have the same powers as the Sheriff.

My unease is focused on the provisions that enable the privacy provisions of non-debtor parties to be breached and the garnisheeing of a debtor's salary and wages without their consent. It is not something we allow in the ordinary course of—I cannot think of any ordinary course where we allow, effectively, the dipping into people salaries without their consent, although I think it does arise when you have a debt to the commonwealth that exists by way of payments that are made to individuals, whether it is a debt owed to Centrelink or whatever the case may be. Even in that instance, I am not sure that it is with or without the consent of the individual involved. I suspect it is not with their consent if it is a debt, but that is something I would like to explore during the committee stage.

I would like the impacts of the bill to be closely monitored and reported on. I think that is important, and an evaluation regime would be a useful inclusion in the bill. I think one of the issues that I pointed to earlier was this issue of the investigation notice. Having had some exposure to how these things work in practice, my understanding is that at the moment how this works in practice is that these steps are available before the courts, but they are rarely used because costs cannot be claimed against the person involved. So ordinarily, they do not go down the path of doing any of this outside of court, even though the option exists. This would allow that process to take part, and costs can be reclaimed as well.

I just make the point that the individuals that we are talking about in this instance are often very vulnerable individuals who already are in financial difficulty, and so we do not want to do anything that is going to make that worse. I know that is not the intention here, but I think it is fair that during the committee stage we explore that a little further.

I did ask, and I have not been told yet, whether the practice still exists where people are able to also obtain financial advice prior to these sorts of matters being heard in court in the magistrates jurisdiction. I know that was a practice of the past, and I am keen to learn whether that is still available. That is usually done by NGOs, but I think it is really important in terms of assisting those vulnerable individuals who are involved.

Of course, they are not always vulnerable. Some people just do not want to pay off the debt, but there are many people who find themselves in these situations because they are particularly vulnerable, and those are the people we are particularly concerned about. The last thing we want to be doing is making things even worse for them. Again, I do not think that is the intent, but I do intend to explore those issues further during the committee stage debate. With those words, we indicate our support for the second reading of the bill.

Debate adjourned on motion of Hon. J.E. Hanson.

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