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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-22 Daily Xml
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Statutes Amendment (Civil Enforcement) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 June 2021.)

The Hon. S.G. WADE (Minister for Health and Wellbeing) (16:02): I thank members for their contributions on this bill and take this opportunity to provide some further information requested by members in their second reading contributions. The opposition has queried the ability for a court to make a garnishee order attaching a debtor's Centrelink benefits. As the honourable member indicated in his contribution, Centrelink itself cannot be subject to a garnishee order to pay a debtor's benefits directly to the court or a judgement creditor.

Section 60(1) of the commonwealth Social Security (Administration) Act 1999 provides that subject to other provisions of that act:

A social security payment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.

However, once a social security payment has been paid into a bank account it is no longer a social security payment and becomes part of a person's general funds and may be garnisheed. Section 62 of the commonwealth Social Security (Administration) Act provides for a saved amount that may not be garnisheed. The saved amount is determined by calculating the total amount of the recipient's social security payment, including advances, that is paid into the account in the four-week period immediately before the order minus the total amount withdrawn from the account in the same period.

Existing sections 6(3) and 6(4) of the Enforcement of Judgments Act, however, provide protections against the hardship to a debtor arising from such a garnishee order. They provide that the court must give the judgement debtor the opportunity to be heard before it makes a final garnishee order if the debtor was not given prior notice of the application for the garnishee order. The court must have due regard to evidence of the judgement debtor's necessary living expenses and his or her dependants or other liabilities before making a garnishee order affecting the money of a natural person.

Members asked about the impact of penalties on debtors as a result of allowing garnishee orders on term deposits before maturation. The usual process is that payment cannot be received from the garnishee until maturity of the term deposit. Under existing section 6(5) of the act, the garnishee order may authorise the garnishee to retain from the money, subject to attachment, a reasonable sum specified in the order as compensation for the garnishee's expenses in complying with the order. This would allow the bank to be compensated from the garnisheed moneys for the bank's reasonable losses in maturing a term deposit early.

It can be expected that the debtor will incur loss due to this, and potentially also penalties arising from the early termination. However, this needs to be balanced against the interests of judgement creditors in recovering their court-awarded judgement debt and dissuading debtors from trying to keep their money out of the reach of the court and judgement creditors by placing it in a long-term deposit.

Although the bill would only amend the garnishee order provisions to remove the requirement for consent to garnishee wages or salary and to allow for a garnishee order for money in a term deposit before maturation, the Hon. Kyam Maher was interested to understand whether superannuation contributions may be garnisheed under the Enforcement of Judgments Act. My advice is that it is unlikely that superannuation could be garnisheed under the act, because the commonwealth legislation restricts early access to superannuation.

Similarly, although the bill does not amend the scope of the court's powers to make garnishee orders other than in relation to wages and term deposits, the opposition sought information on whether cryptocurrency could be the subject of a garnishee order. Under section 6(1) of the act, for this to be the case cryptocurrency would need to fall within the definition of 'money owing or accruing to the judgement debtor from a third person' or 'money of the judgement debtor in the hands of a third person'.

The Hon. Connie Bonaros sought information about the availability of financial counselling services within the courts. After inquiries with the Magistrates Court registry, courts have advised that in the past the Salvation Army did have an office within the court for the purpose of providing financial counselling. However, there are no longer any financial counselling advisers available within the court premises. Rather, the courts keep a stock of Anglicare pamphlets and business cards to provide people with information about the availability of Anglicare's financial counselling services.

The opposition has filed an amendment to deal with the reporting on administration of the Sheriff's Office, which I will deal with in the committee stage. I look forward to constructive debate on the bill in the committee stage.

Bill read a second time.

The Hon. J.E. HANSON (16:07): I move contingent notice of motion No. 2 standing in my name:

That it be an instruction to the committee of the whole that it have power to insert a new clause in relation to annual reporting of the Sheriff.

Motion carried.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: When did consultation on this bill close?

The Hon. S.G. WADE: I am advised May 2019.

The Hon. K.J. MAHER: Consultation closed more than two years ago. Is there a particular reason we are seeing and debating this legislation some two years after consultation closed?

The Hon. S.G. WADE: I am advised that there have been significant discussions particularly with the elements of the courts sector in terms of how these provisions would operate.

The Hon. K.J. MAHER: Was that the reason that this took two years after the close of consultation to see its way to debate here?

The Hon. S.G. WADE: It is one of the factors.

The Hon. K.J. MAHER: Would the minister be good enough to inform the chamber of some of the other factors that caused a two-year delay?

The Hon. S.G. WADE: The rich and diverse legislative agenda of the Attorney-General.

The Hon. K.J. MAHER: I thank the minister for his response. Of course, coming up with legislation to put kids in gaol is obviously part of the rich diversity of the legislative agenda.

The Hon. S.G. Wade interjecting:

The CHAIR: Order! The leader has a question, I think.

The Hon. K.J. MAHER: Is the minister able to inform the chamber whether all elements of the Courts Administration Authority agree with the provisions contained in this bill?

The Hon. S.G. WADE: I am advised that the Chief Magistrate and the manager of court reform were nominated as contacts in relation to the Statutes Amendment (Civil Enforcement) Bill, and they concur with the final version of the bill.

Clause passed.

Clauses 2 to 7 passed.

New clause 8.

The Hon. J.E. HANSON: I move:

Amendment No 1 [Hanson–1]—

Page 5, after line 14—After clause 7 insert:

8—Insertion of section 15AB

After section 15A insert:

15AB—Annual Report

(1) The sheriff must, on or before 31 October in each year, provide to the Minister a report on the activities of the sheriff during the preceding financial year.

(2) The report must include—

(a) information on the administration of this Act by the Sheriff; and

(b) information relating to the sheriff's budget (including income and expenditure); and

(c) information relating to the exercise of the sheriff's functions and powers under the Enforcement of Judgments Act 1991; and

(d) information (other than information that identifies a person) in the sheriff's possession relating to complaints by sheriff's officers or other members of the staff of the State Courts Administration Council relating to conduct in the workplace; and

(e) other information of a kind prescribed by regulation.

(3) The Minister must cause a copy of the report to be laid before each House of Parliament within 14 sitting days of that House after receiving the report.

To provide some background in regard to the amendment, I think it is worth referring to the subservient authority that the Sheriff acts in regard to, that specifically being the Courts Administration Authority. The reason why we have a reporting structure proposed here is that we have a separate Courts Administration Authority which exists under a Courts Administration Act.

The purpose of creating the Courts Administration Act was to provide cheaper and accountable courts administration in South Australia. When that was created there was recognition that it was quite a significant change, and the courts being separate from the government may create some problems, particularly in regard to accountability, and they decided to keep that accountability through a number of methods, including annual reporting and ensuring that the State Courts Administration Council members appeared before things like parliamentary committees.

Other methods raised at the time to ensure accountability in fact included that specific individuals of the Courts Administration Authority, such as the Sheriff, should report on delegations and on the establishment of other administrative policies and guidelines. So even when they were creating a separate authority, they were contemplating that there would be reporting by executive members, including the Sheriff, of that authority on the powers that they wield and what they do.

Some members of parliament at the time did note concern at moving to a statutory corporation controlling the administration of the courts. The parliament questioned at the time of debating that bill whether the focus of the judiciary should be on administrative matters. A position has been put by this government in regard to that, when we asked that the Courts Administration Authority be brought back towards the government and that they be public servants and, furthermore, that there be Public Service guidelines that more strictly control them.

That has been resisted by this government, and that is significant because, when we proposed that they be separate, it was regarded that the oversight of administration duties by judges and other people like the Sheriff may take away their capacity for such day-to-day administration and the provision of reports.

So in regard to whether or not executive staff, like the Sheriff, can or should provide reports, I would say that they would not have to were they brought back towards the government and a government reporting structure. It is because they are separate that we are looking at additional reporting clauses like this. I will go further into that.

The structure created now needs oversight. The parliament noted at the time of creating this separate structure that the staff, indeed the senior staff, would be covered by obligations as public servants, but the Courts Administration Authority and the Sheriff have the power to vary or revoke determinations made by the Commissioner for Public Sector Employment. It has created a structure whereby the Courts Administration Authority, and the Sheriff as part of that structure, is outside the Public Service and responsible only to the judiciary, with the power to employ court staff who would be responsible to them only and subject to that position's decisions concerning things such as industrial relations matters.

That has some weight, given that there was a parliamentary inquiry into specifically how that was being done, particular to matters such as industrial relations. The committee at that time noted that the CAA management structure changed consistently throughout that inquiry. Here is the management structure changing itself to try to adapt to industrial relations concerns and some of the matters that would require standardised reporting in the proposed amendment. There were five changes in 18 months of the CAA's organisational chart and organisational structure. This is, even for a body that needs to adapt to pretty significant change, a lot of changes. There was minimal reporting in regard to how these changes operated and why these changes were needed.

Also of concern was the evidence that the Sheriff had been issuing sanctions. I go back to industrial relations concerns. He had been issuing reprimands on employees without having the necessary delegations under the CAA delegations manual to do so. The overwhelming evidence provided to the committee in the inquiry seriously questioned whether the CAA had the ability to oversee its own investigations and how it was doing them.

All this matters because what we are proposing here in a reporting structure is some form of oversight. The committee found that the courts administration has a critically low level of accountability for all of its senior management in the CAA, particularly of the Sheriff. The State Courts Administrator and the Sheriff, when they first appeared before the committee, in fact indicated to the committee that they were unaware of any complaints being made within their departments, full stop. It was subsequently found that not only were there multiple people who were willing to provide evidence to the committee but there were in fact matters afoot before the Industrial Relations Court that they seemed unaware of—not just the administrator but the Sheriff, too.

What we need to start putting in place is oversight. We need some recognition of the size of the problem we have facing us. We need recognition of the fact that the Sheriff operates somewhat separately to the CAA generally and that, despite the recommendations of the committee that he have certain powers stripped from him, he retains all the powers and responsibilities under the Sheriff's Act in ways that allow him to have delegated authority. Having those powers taken from him is being resisted. As a result of the resistance to taking those from the Sheriff, this government needs to also look at whether or not he should report. Our position is that he should, and that is what is recommended in this amendment.

In regard to a couple of positions put by the Attorney-General regarding the recommendations of the committee about reporting, which are also relevant for the purposes of discussing this amendment, as I have mentioned, the position of Sheriff was no longer to be appointed by the State Courts Administrator and instead, pursuant to section 5 of the Sheriff's Act, be afforded the full status of a public servant. The government did not support that recommendation.

Furthermore, there was a recommendation that parts 2 and 3 of the Sheriff's Act be amended, so that the position of Sheriff has a more limited role in regard to the recruitment and human resources management of Sheriff's Officers, thereby limiting the Sheriff's role and statutory responsibilities to solely maintaining security and order at the courts' premises. That recommendation was also not supported by the Attorney-General.

Critically, in regard to recommendation 5, which concerns how reporting is to be done, I recognise that there has been some back and forth between the Attorney-General, or the Attorney-General's representative, and the shadow attorney-general and me. We got the response to the recommendations when they were tabled in the Legislative Council on 16 March. That was in response to the report tabled well before that by the Statutory Authorities Review Committee. I forget the date of exactly when it was tabled, but I think it might have been in the previous year.

It was proposed at that time to amend the CA Act in order to prescribe additional information and the kinds of reporting that we are asking for in regard to this amendment to the Sheriff's Act. Nothing has happened. It has only come up now that we have a situation in which the Attorney-General, through her representative, has decided to say, 'I definitely will get something done. I definitely will act.'

It has been quite some time since the response to the recommendations was given on 16 March. It seems a little bit like the Attorney-General has been sitting on acting for quite some time. Commitments given to act right now are well and good, but quite some time has elapsed since the report was given and the recommendations were responded to, and nothing has happened.

Furthermore, in regard to the commitment to amend the CA Act, that will not amend the Sheriff's reporting, it will only amend the Courts Administration Authority providing reporting. As I have said, there has been resistance by the government to the Sheriff having some of his administrative roles and responsibilities taken from him. There has been resistance by the government to the Sheriff not acting beyond maintaining order within the courts and to his having other roles and responsibilities, some of which have an industrial context. As a result of resisting that, I say that the Sheriff should report in the same way as any executive authority should in regard to how those powers are exercised, and that reporting should take the format of what we have here.

With regard to the third point that has been raised in some discussions, which is complaints, it is no different to any other agency where there is a need to report on matters where they have a range of different levels of information and from the simple fact that a complaint has been made by an external party, right through to it being dealt with as an internal matter.

There needs to be full visibility in regard to this. There needs to be governance and there needs to be reporting into how that was done. Simply saying, 'It is up to the CAA to do that,' does not actually recognise the powers and responsibilities that the Sheriff has. This amendment goes to saying that that should be recognised and the Sheriff should report as exactly that kind of officer, and I have put that amendment.

The Hon. F. PANGALLO: I rise to indicate that SA-Best will provide in principle support for the Labor amendment at this stage, and we will reserve our position pending further discussion between the houses.

The Hon. R.A. SIMMS: The Greens are happy to support the amendment at this stage, but we will be following the discussion closely.

The Hon. S.G. WADE: I acknowledge the positions of the honourable members. I think it would be helpful for the government to put its rationale as to why this amendment should be opposed. This amendment would insert a new requirement in the Sheriff's Act 1978 for the Sheriff to provide an annual report to the minister for laying before each house of parliament.

The amendment would require this annual report to contain information on the administration of the Sheriff's Act, the exercise of the Sheriff's functions under the Enforcement of Judgments Act, and information in the Sheriff's possession relating to complaints made by Sheriff's Officers or any other member of the staff of the State Courts Administration Council relating to conduct in the workplace.

The amendment appears to arise from the recent parliamentary inquiry into the Sheriff's Office. The Attorney-General tabled her response to the inquiry's report in parliament on 16 March 2021, confirming support of the inquiry's recommendations for improved reporting by the Courts Administration Authority.

The Attorney's response accepted two recommendations relevant to the filed amendment. She supported the recommendation that the Courts Administration Act 1993 be amended to allow the Commissioner for Public Sector Employment to monitor and report on the Courts Administration Authority's observance of employment determinations and provide advice on and conduct reviews of public sector employment or industrial relations matters respectively.

In her response to the inquiry, the Attorney-General also stated that she supported the inquiry recommendations that the Courts Administration Authority should report more comprehensively in its annual reports, including reports from the divisional heads, including the Sheriff. The Attorney in her response stated that she proposed to amend the Courts Administration Act to prescribe additional information to be included in the Courts Administration Authority annual report.

This amendment would result in unnecessary duplication with the proposed improved Courts Administration Authority annual report. In addition, there are problems with the amendment itself. It would require the Sheriff to report on any information in the Sheriff's possession relating to complaints made by Sheriff's Officers or any other members of staff of the State Courts Administration Council relating to conduct in the workplace.

The Sheriff may not have any background or context about those complaints, but would be compelled to report on whatever information happened to be in her possession about the fact of such a complaint, including a complaint made by somebody outside the Sheriff's Office. This would be potentially misleading information.

Therefore, again, while the government supports increased reporting by the courts and the Sheriff, it is proposing to require this by prescribing additional reporting requirements in the Courts Administration Act to apply to the courts and relevant Courts Administration Authority divisions, including the Sheriff's Office.

As the Attorney and her officers have indicated to honourable members, the government is willing to give an undertaking to the council that it will bring amendments to the Courts Administration Authority back later this year to increase the reporting requirements for the Sheriff's Office as well as necessary regulations to the same effect in line with the Attorney-General's response to this inquiry.

In terms of honourable members seeking discussions between the houses, we would indicate that we would hope that, with this commitment, honourable members might be inclined to support the amendment. Otherwise, the Attorney-General would be reiterating it in the House of Assembly.

The Hon. J.E. HANSON: I have just a few responses to the government's position specifically in regard to complaints. If it is the government's position that the Sheriff's Office is incapable of reporting on matters when they have a range of different levels of information in regard to a complaint, put simply, I think that speaks volumes on whether or not the government thinks the Sheriff should have the ability to administer those things. If you are not able to report on it, then why do you have the ability to make a decision on it that affects someone's life, someone's job and the industrial context of the way in which you exercise those powers?

I would also say that it is worth looking at the fact that the Sheriff's Act mentions the word 'report' not once in the entire act. I go back again to the issue that if you are to give the Sheriff powers that you do not require the Sheriff to report on, that go outside the expectation—and I went in my opening statement to it—of what parliament said the Sheriff should be doing when he got the role to act in the way that he is acting, then I think you need to assess whether or not you need to restrict the Sheriff's powers back to something that is not administrative and is purely whether or not the Sheriff should be acting as a public servant keeping law and order in the courts.

There is no reason to be saying that you should not have this amendment if you are going to grant the Sheriff more powers. If you are going to say, 'You shouldn't have reporting, but the Sheriff should have the powers anyway,' then you are opening yourself up to the kinds of problems that the Statutory Authorities Review Committee saw and the kind of, frankly, incompetence where the Sheriff can stand there and say that he did not realise he had been exercising powers when those powers were on foot down at the Industrial Relations Court.

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (16:33): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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