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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-06-26 Daily Xml
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Motions

Passenger Transport Act

The Hon. C. BONAROS (17:54): I move:

That the regulations under the Passenger Transport Act 1994 concerning transit barring orders, made on 8 May 2025 and laid on the table of this council on 13 May 2025, be disallowed.

The purpose of this motion is to disallow the Passenger Transport (Transit Barring Orders) Amendment Regulations 2025. I am bringing this to a vote today because, as we know, we are about to go on winter break, and in this instance we have an early commencement certificate which has been issued and these amendments come into effect on 1 July.

That has implications, particularly if, after 1 July, or later down the track, there is any challenge to these regulations on a number of grounds and we end up with different cohorts of people falling into different baskets, which we often do when regulations are challenged, and we have people who have been charged with offences which, when you make changes, no longer apply after the changes have been reversed.

Can I just say for the record that I have tried to approach this issue with the government in a collegial way in order to resolve this issue, an issue which has been the subject of, sadly I think, information in the public arena, particularly on radio, which I said I found appalling and which did not even touch on the issue of what we were talking about.

In fact, the only thing that I could see from the radio segments that I tuned into was—I said it there and I will say it now—a political stitch-up over what the government dubs as being tough on crime, completely in the absence of anything to do with process and the process that happened at the Legislative Review Committee, completely in the absence of all the evidence that has been provided to that committee and, importantly, completely undermining the process of that committee in terms of the minister going and speaking publicly about deliberations that were done at a committee meeting.

Mr President, you should be concerned about that and our Clerks should be concerned about that, because we know that there are rules that apply in relation to what happens in those meetings. When you have a minister who sees fit to go and tell the deliberations that happen in a committee meeting on radio—bearing in mind that he only told half the story, the half that suited his argument, and not the full story—that is a breach of the practices and protocols in this place.

It did occur. It occurred last week on radio and it was milked to the nth degree, sadly. I found it appalling and completely dismissive of the fact that that committee that we are talking about is not just made up of Liberals and a person from the crossbench; that committee is made up of Liberals, it is made up of Labor and it is made up of a crossbench member.

If we wanted to play the way that the minister played, we could have very well gone on radio and given the same sorts of accounts that he gave about what his members did on that committee and about what his ministers have said about these regulations in those private reports, which are not meant to make their way into the public but are there for the scrutiny purposes that exist within that committee. We could have done that, and in fact I told people to go and read between the lines about what those ministers may have said about this, given the level of angst that these regulations have caused.

This has nothing to do with being tough on crime. Let me point that out first. It has absolutely nothing to do with being tough on crime. The regulations that we are introducing, that will come into effect on 1 July with an early commencement certificate, which means we cannot do anything about them unless we deal with them today, include changes that may very well end up being challenged. There are certainly concerns that have been raised in relation to their validity and the powers that have been exercised in making them, and certainly in relation to overreach by the government.

This is not a bill like the bill we just debated. This is a set of regulations and regulations have a purpose. In this instance, there have been very serious concerns raised not by us as members but by stakeholders, including the Legal Services Commission, the ALRM and the Law Society, about overreach by the minister.

In addition to the overreach by the minister, concerns have also been raised about the disproportionate impact it is going to have on certain cohorts within our community. There is an increase in the maximum period of barring orders from three months to six months for a first order and from six months to 12 months for a second order. There is the introduction of new penalties for breaching an order. There is the introduction of a provision allowing a recipient to apply to the court for the lifting of a barring order but not before three months have passed, so we are going to apply the penalty today and you can do nothing about it for three months.

There are concerns around the fact that we are dealing with charges and not convictions in the application of these barring orders. You can be barred without being convicted of an offence and this marks a significant and punitive shift in public transport law in South Australia and it is for that reason that it should not be dealt with by regulation. That is what the experts are saying and that is what anyone who knows legislation would be saying as well. It is an attempt by the government to slip far-reaching changes through regulation without proper consultation, scrutiny or debate.

We have just had a bill that has been the subject of all those things, but we went through a process in here. When the government deems that it is okay to just make these new laws that are punitive in nature that carry criminal penalties and we will just slip them through in some regulations, there is something seriously wrong with our lawmaking practices.

The regulations lower the bar for discretionary orders. They lengthen their effect and they expand who can issue them, including now authorised officers. It does not even need to be the police anymore, it can be an authorised officer. They may be departmental staff with no legal training, no procedural safeguards and no requirement to follow evidentiary standards. It is an extraordinary transfer of power, potentially into the hands of, depending on who we get, unqualified and inexperienced individuals.

These are not minor administrative matters. These are substantive changes to law, creating a quasi criminal prohibition scheme that ought to be considered in this place, like we just did with the North Adelaide Parklands. As a member of that committee, I have had the benefit of considering the detailed submissions on those regulations and I will in a moment seek leave, for the benefit of other members, to table at least two of the submissions so we know what we are getting into with these regulations when they come into effect on 1 July, the first from the Aboriginal rights commissioner and the second from the Legal Services Commission. They have raised serious legal, ethical and practical concerns. They have warned that the regime is heavy-handed, poorly targeted and disproportionate and that it takes risks punishing innocent, vulnerable people, not protecting the community from genuine threats.

I remind honourable members that everything the minister has said that he is doing, he can already do. It is the additional layers over and above what he can do. If you want to target thugs, delinquents and unruly kids on buses, trains and trams, you can already do that, and guess what? You can already slap them with a barring order. You can already do all those things. We are moving above and beyond that now so that we can show we are tough on crime. We are doing that in the absence—

The PRESIDENT: Are you moving those two submissions?

The Hon. C. BONAROS: Yes, I am. I am seeking leave—

The PRESIDENT: Are they submissions to the committee?

The Hon. C. BONAROS: They have been made publicly available. They have been circulated outside of the committee.

The PRESIDENT: I think what we will do, the Hon. Ms Bonaros, is that when you have made your contribution and we have heard the other contributions, will you have a chat to the Clerks, because when you sum up you may seek leave to submit those submissions to have them included if we deem that is appropriate. You can do that when you conclude your remarks.

The Hon. C. BONAROS: Yes, I will do that, and I note for the benefit of the Clerks that these submissions have been circulated now extensively to members of parliament and to ministers and stakeholders in relation to the issues they have canvassed, so they are not limited. They are publicly available documents.

These regulations will impact, as I said, the most vulnerable members of our community, people experiencing homelessness, people with disability, mental illness, people fleeing from domestic violence households, people with drug or alcohol dependency, and, of course, Aboriginal South Australians, particularly in regional areas.

These are people who often solely rely on public transport to get to work, to get to medical appointments, to get to some of those court appointments that they would have to deal with as a result of their interactions with the criminal justice system, or to see their children. The assumption that these people can walk or drive or catch a cab is not a daily reality for these individuals we are talking about in the main.

The assumption that they do not deserve to be on public transport is, in my view, deeply offensive. Are we really prepared to tell these South Australians that they are going to be banned in this manner, not under the current regime that exists but in this manner, for three, six or 12 months, or even indefinitely, based on a suspicion—not a conviction; based on a suspicion—with no avenue of appeal for at least three months and no power for a court to intervene, even if the order is wrongly made?

It is a huge concern that even if the order is wrongly made, you cannot do anything about it before you can finally get yourself before a judge. That is months down the track. Lord only knows what you are going to have to deal with and how you are going to have to go about your daily living between the time of the suspicion and the time that you can finally make it before a magistrate. There is no safety valve in the scheme and, as the experts have said, it is a blunt instrument.

I am going to give you a real example, based on real-world concerns that have been raised in evidence. Imagine a person with a cognitive disability who becomes visibly distressed and agitated on a train. They have not committed an offence. They have not been charged or convicted of anything, but a probationary constable or an untrained approved person misunderstands their behaviour and issues a three-month ban.

That person then cannot make it before a court to show that they had a cognitive disability, which resulted in their behaviour, for three months, but in that time they cannot catch any public transport. They lose their access to their psychologist appointments, to their GP appointments, to their court-mandated programs, to their work or their study. They are not a threat to public safety; they are simply falling through the cracks of a system designed without safeguards because we want to be tough on crime.

Take the example of a domestic violence victim caught in a public confrontation with their abuser. A hasty decision-maker sees something from a distance, it is disorderly, and they issue a barring order on both parties, and all of a sudden that person trying to flee from their perpetrator is also banned for the next three months from catching public transport. The victim is banned; the abuser walks away.

These are not hypothetical concerns; they are real risks raised by frontline legal services. I draw the council's attention also to correspondence that I received yesterday and I will seek to table that letter from the equal opportunity commissioner. I will read from that letter. The commissioner highlights serious concerns about the disproportionate impact these changes will have on disadvantaged and marginalised groups, particularly those already facing systemic barriers to transport and justice.

Let us also not forget the purpose of the Passenger Transport Act, under which these regulations are made. The act's objects include the promotion of access to essential services, especially for the transport disadvantaged, and the promotion of social justice. These regulations are a direct contradiction of these objectives.

This is not called lawmaking; this is regulation used as a workaround to avoid accountability, and it will have very human consequences. So today I say to the government—and, as I do with all issues that are discussed in that committee, when there is an issue, we try to raise it in a collegial manner behind the scenes and get it addressed. In this instance, we have been met by the stubbornness of the minister responsible, who does not want to budge, does not give a damn about what everyone is saying about his regulations. He does not care what the concerns are because he is tough on crime and the rest of us are apparently soft on crime.

As I said on radio, I would be asking the Attorney-General and the Minister for Human Services what they have to say about these regulations and, indeed, the Minister for Child Protection, whose kids will also be captured under these changes and, I bet you, if you went and asked them, they would have a very different take on it. They would have a very different take because they know that overwhelmingly it is their cohort of constituents and people they are responsible for who are going to be impacted by these regulations.

So we can allow this to fly today, but mark my words: post 1 July, at some point, one of these scenarios will occur and we will find ourselves in a mess, and the people who will have to clean up that mess are, indeed, the Attorney-General, the Minister for Human Services and the Minister for Child Protection—not the Minister for Infrastructure and Transport but the other three ministers, who deal with these things on a daily basis and who understand, not because they have told me but because of everything their portfolios are supposed to enshrine, the impacts that this will have disproportionately on the people who fall under their watch.

If the Minister for Infrastructure and Transport wants to push ahead, then he can do so at his own peril. I hope somebody challenges these regulations. I hope that at some point he is asked to defend how we can use regulations to give these sorts of powers to authorised officers and others. The minister does not need these powers; he has ministerial power now. For the record, those trams, buses and trains he is talking about do not belong to him. They belong to the public of South Australia, not to the minister responsible for this.

He can be as tough as he likes on crime and wanting to stop any unruly behaviour—and there is lots of it. Nobody who is speaking on this issue is saying for a moment that that does not occur and does not need to be addressed, but address it through the appropriate channels. This is not the appropriate channel for these changes to be made.

I am extremely concerned about the overreach. It points to the broader problem that we have in this place—and I note the time, so I will wrap up—that the Legislative Review Committee confronts on a daily basis, of the majority of lawmaking in this state taking place via regulation and the extent to which we overreach in terms of the powers that we try to implement through regulations. I think I have said enough. I have moved that these regulations be disallowed.

The Hon. B.R. HOOD (18:12): I rise as the lead speaker for the opposition on this motion. From the outset, I preface that we do not support this disallowance motion. Our position is that these new regulations are flawed, but as it is impossible to disallow only the flawed aspects, we do not support the disallowance as it would reject the entire regulation.

The Leader of the Opposition has been on the record that we do believe that we need some stronger laws around the people who do the wrong thing on public transport so that passengers are protected from those who would assault people and use physical and verbal violence against people. But what we do not stand for as an opposition is the minister running roughshod over parliamentary process, conflating parliamentary process and weaponising it in a political manner.

He passes on clips of the Leader of the Opposition and his stated position on calling for stronger laws on public transport, lines that up with what are commonly described as holding motions given in the Legislative Council and the House of Assembly by the Legislative Review Committee—which is usual parliamentary process—and then whips that up to divert attention from him and his government as he goes into estimates with DEM and DIT, smiling with glee the whole time.

It is utterly ridiculous that we are even here talking about this because of the behaviour of a minister of the Crown. We have our Clerks here and you yourself, Mr President, ensuring what the honourable member who spoke previously can table from a parliamentary committee, yet the minister jumps on radio and just decides to tee off on members of the opposition who sit on the Legislative Review Committee, very carefully omitting the fact that there are two members of his own party who sit on that Legislative Review Committee. I have seen the Hansard and the comments from the member for Elizabeth, who has moved a holding motion of his own for the Legislative Review Committee in the House of Assembly. Somehow that was missed out on FIVEaa.

It is dumbfounding. Well, actually, no, it is not, because I actually tip my hat to the member for West Torrens. He is a master at this. He has been here a very long time—many would say too long—but he is a master at it. He is just so good, so slick in weaponising things that he knows he should not be weaponising. It is absolutely ridiculous that he would behave this way, but he is doing it anyway.

As the Hon. Connie Bonaros said, there has been significant consultation that has come in to these regulations. There are very pointy bits on it that the government really should be knocking off. We have heard from the Law Society, the Aboriginal Legal Rights Movement and the Legal Services Commission that there are some serious concerns. It does not take too much imagination, as the Hon. Connie Bonaros said, to see how some of these things could really catch people out.

They are sweeping powers, inflexible powers in some respects, with these regulations. We do urge the government to attend to what could be unintended consequences of these regulations, particularly the risk of lifetime public transport bans for vulnerable South Australians. We urge the government to address these flaws. We urge them to update these regulations promptly, and we urge them to undertake a broad public awareness campaign so people do understand the serious new consequences attached to these offences.

Again, the opposition wants to see stronger laws to ensure that those who do the wrong thing on public transport are held to account, but the government cannot run roughshod over parliamentary process, and the government surely cannot weaponise it for their own political purposes, spin it up in the media, light the fuse and then run away. That is exactly what Tom Koutsantonis has done here.

The Hon. Connie Bonaros is right. We keep getting told that we cannot know what happens in cabinet, of course, and we actually cannot know what happens in a lot of things with this government, but I would like to know what the Minister for Child Protection and Minister for Women and the Prevention of Domestic, Family and Sexual Violence thinks of this, what the Attorney-General thinks of this, because, again, the Hon. Connie Bonaros is right that they will be the ones who will have to deal with the aftermath of these regulations. We urge the government to look at them, consider the flaws that may exist there, update those regulations promptly and then bring them back.

As I said at the outset, the opposition will be opposing the disallowance motion because we cannot chuck out the entire regs. Some of them we agree with, but there are bumps on a fair bit of it, and the government needs to do a bit more work.

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (18:18): I rise today to speak on this motion. Whilst we will not be supporting the Hon. Connie Bonaros' disallowance motion, as the Hon. Ben Hood has pointed out as lead speaker, I would like to speak about the vital role of parliamentary scrutiny, particularly when it comes to regulations; that is, subordinate legislation or regulations that can have a profound impact on people's daily lives in the same vein as legislation but are often introduced without the same level of debate, without the same level of transparency and without the same level of consultation that primary legislation receives.

One of the tools that is available to us as members of parliament is the notice of motion to disallow a regulation. This is not a political stunt, nor is it an act of blind opposition, and it should never be treated as such. I think those who seek to do so should be absolutely ashamed of themselves, because, let me be clear, notices of motion, as we all know in this place, are a routine and important mechanism that allows this chamber, and the other place, to examine and to scrutinise the implications of executive decisions.

Make no mistake, calling for a regulation to be scrutinised is not the same as opposing its intent. In fact, it is often driven by a desire to see the intent carried out in a way that is fair and lawful. In the case of these regulations concerning public transport bans, concerns have been raised, not about the need for community safety—we all want safer public places—but about the breadth and the nature of the specific powers being granted. The regulations allow for indefinite bans. As my honourable colleagues have pointed out, these indefinite bans from public transport will potentially be issued by non-police officials and before a person has been convicted of a crime.

This is not, as the Hon. Connie Bonaros pointed out, about being soft on crime. This is about ensuring that innocent people are not unfairly punished due to administrative errors, mistaken identity or overreach. Notices of motion to disallow are a responsible way for parliament to say, 'Let's take a closer look.' They are about due diligence. They are about transparency, they are about due process and they are about getting the balance right between authority and accountability.

As members of this chamber, it is not only our right but our responsibility to interrogate executive powers. We do not rubberstamp legislation and nor should we. We question it, we examine it, we listen to the debate and we challenge when appropriate. That is the cornerstone of a healthy democracy.

So I say again: putting forward a notice of motion to disallow is not an attack on public safety. It is an assertion of parliamentary responsibility because laws, which are passed in haste without consultation or scrutiny, are laws most prone to error. The people of South Australia deserve laws that protect them with fairness, with transparency and with accountability. What they do not deserve are members of parliament, such as Tom Koutsantonis, who deliberately misuse the disallowance process to stoke fear and confusion in the community, and do so in a manner that is not even entirely accurate.

As we all know in this place, the Legislative Review Committee is also government controlled, with the Labor majority that ultimately determines the direction of its inquiries, its deliberations and its recommendations.

The Hon. C. Bonaros: And witnesses—its witnesses.

The Hon. N.J. CENTOFANTI: Exactly. While the minister was quick to reveal on commercial radio the committee's deliberations concerning Liberal members, he notably avoided, nor was he questioned about, the views and contributions of his own Labor colleagues on the very same topic. In fact, recorded in Hansard the Labor member for Elizabeth, Mr Lee Odenwalder, acknowledged the seriousness of the concerns raised by witnesses stating, and I quote, 'I would like to thank you all for coming in. You make some pretty compelling points, I have to say.' He then went on to concede, 'There are so many questions.'

This chamber exists to serve the people, not to scare them. The disallowance mechanism is a tool of accountability, not a political weapon. It is designed to prompt thoughtful review and to ensure regulations are workable, are proportionate and are just. When members use that process to sensationalise, to mislead or to suggest that scrutiny equals sabotage, they do a disservice to the democratic institutions that we are entrusted to uphold. Worse still, they erode public trust and confidence in the very system designed to protect them.

South Australians expect their representatives to be responsible, not reckless, to test the detail, not inflame the headlines, because good governance is not about who can shout the loudest, it is about who can think the clearest, act with integrity and legislate in the public interest.

The Hon. I.K. HUNTER (18:25): The Malinauskas Labor government has recently unveiled a series of measures and investments to improve safety and security on our public transport network, including the establishment of a new security task force to combat antisocial and violent behaviour as part of a $9.6 million state budget initiative.

In addition, the government recently announced the introduction of nation-leading powers to crack down on criminal and antisocial behaviour on public transport, including indefinite bans for passengers. The measures to come into effect from next month give the Minister for Infrastructure and Transport new authority to ban passengers indefinitely from public transport if they have been charged with offences involving violent acts. Currently, only South Australia Police can ban people from travelling on public transport, and SAPOL does not have the power to issue indefinite bans.

These include sexual and indecent assault, carrying weapons, and psychological or physical abuse that may occur on board services or while waiting at stations or bus stops. The maximum court penalty for breaching a transit barring order will also be strengthened under these changes, increasing from $2,500 to $7,000 as the state government takes a hard line approach to protect passengers, drivers and public transport workers. In that you have the whole reason for doing this: we want to protect the users of our public transport system and the people who work for South Australians running those public transport systems.

As I said, I am grateful that the Liberal Party has come on board and flip-flopped on their previous position of opposing these provisions. I have to say very briefly that it is incredible that Liberal Party members in this place come in here complaining about Minister Koutsantonis deliberately talking about these disallowance motions and making a political statement about them when they were doing it themselves on radio all week.

What was the Leader of the Opposition in this place doing on radio all week? She was opposing this while her leader was out doing other interviews saying, 'We support them and we want them to go further.' This really demonstrates a total division inside the Liberal Party in this state. Vincent Tarzia, the Leader of the Opposition, on one side saying, 'This should go further,' Liberals up here saying, 'No, we're not going to support it,' run by Alex Antic in this state, overturning all the Liberal Party policy that has been in place for years.

They are soft on people going after our drivers, they are soft on people who are abusing our passengers who only want to get on with their private business and use public transport in safety. I am very glad that they have reconsidered their position. The Hon. Nicola Centofanti, I think, is very cute when she says, 'We don't want this to be politicised', when she was doing the very same thing herself. Methinks, Mr President, she protesteth too much.

The PRESIDENT: The Hon. Ms Bonaros, you might be mindful of the time.

The Hon. C. BONAROS (18:28): Yes, I am mindful of the time. I am not going to go on. I am going to say that I have spoken to the Clerk in relation to the letters. Can I urge all honourable members to go to the Legislative Review Committee and access the submissions that are available. Can I particularly urge the government and the minister responsible to go and read the submissions that have been made available.

I do not believe the Hon. Ian Hunter believes a word of anything he just said, and can I seek leave to table the letter from the equal opportunity commissioner, and just for the minister and the Attorney-General's benefit—who has just joined us—the equal opportunity commissioner ends her correspondence by saying:

In the event, if these regulations are commenced as proposed, it is crucial that members of the public are made aware of their rights under the act and their ability to lodge a complaint with my office if they believe they have been discriminated against.

I would just reinforce that advice. Shame! I seek leave to table this letter.

Leave granted.

Motion negatived.

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