Civil Liability (Trespass) Amendment Bill

Second Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:34):  I rise to speak on the Civil Liability (Trespass) Amendment Bill 2017. This bill was introduced by the Attorney-General on 18 October 2017 to amend the Civil Liability Act 1936.

The most important thing about civil liability, in my view, is that governments should be as accountable as anyone else and so should their agencies and anyone employed or acting under instruction from them. Why is that so important? Because governments, relative to individuals, particularly in this state, are in a position of Goliath versus David. I am very passionate about this issue, so when amendments are presented to amend this legislation, which at present, except in certain circumstances identified in specific acts, they bind the Crown, and that is very important.

Nevertheless, this bill specifically proposes that there be no legal action for trespass that could be made against an officer serving a notice on behalf of the Crown when entering private property (namely, land), excluding a residential building. Mostly, this relates to police officers, who are of course employed by the Crown. I think it is fair to say that it is for a perfectly lawful purpose, particularly in the exercise of their delivery of service of summons and directions to be served pursuant to court action.

An authorised officer has the right to trespass with lawful excuse granted in certain circumstances. The authorised officers include, for the purposes of this bill, police officers, protective security officers, a sheriff of the court, a Public Service employee, any other person engaged by the Crown and persons included in the regulations. To the best of my knowledge, there are no others at this point, but that of course can vary and is subject to the disallowance provisions for all regulations.

On 19 October, a government briefing was provided. I thank those who attended for that purpose. To date, I have asked for two things, and they have not yet been provided. As I explained to the Attorney today, I am happy to proceed on the basis that this bill is passed today in this house and on the understanding that I will get these two things and that we may or may not consider some amendment between now and the other place. The first is to identify any cases that are pending against such officers—police officers or others—and the particulars of each and a list of those who were consulted; to date, as I understand it, it has only been SAPOL, which was the only party who requested what is incorporated in this bill.

Secondly, that SAicorp, which of course is the state's insurance company, makes provision for the payment of claims for which there is some liability of the Crown. Essentially, what happens is that agencies pay an amount to SAicorp, a bit like their own private insurance company, and taxpayers pay the bill if there is some breach compensable in that way. It is a little bit concerning to me that it should come at the request of an agency without full disclosure of specifically what is at stake without the passage of these amendments.

I can only really rely on submissions that I have received and the fact that I made my own inquiries in relation to the one case I am aware of, that is, from the pleadings in the case of Dean Cosenza v the State of South Australia. Mr Cosenza instituted proceedings in the Supreme Court, civil jurisdiction, for which he was awarded, in a default judgement, $100,000 compensation for an electricity salesman entering his property when he had ignored a no trespass notice.

The Full Court has heard an application, or it may have been a single judge. Nevertheless, the matter went on appeal. I will change that to this extent. I had referred previously to a Supreme Court application. My understanding is that it was a Magistrates Court application and that there was an order for payment by default on appeal that has been set aside. I think the status of that case at present is that Justice Blue of the Supreme Court, having overturned the Magistrates Court decision, leaves an outstanding claim for damages, which is now defended by the company (I think it is Origin), and that will follow its usual course. The details and extent of any other outstanding cases I am yet to receive. The government is on notice that we need to have some understanding about that before we give a final blessing to this legislation in the other place.

Let me be clear about this. There is good reason why we do not make laws just to deal with one case, or even two or three cases. In fact, when we deal with a very specific and narrow focus of application to have effect on someone's life or their right to claim or be the beneficiary of some entitlement through a legal process, that is frequently described as a hybrid bill and therefore needs to go through a proper process, a committee of inquiry, to ensure that making laws just to deal with one or two people who need to be dealt with, or making laws to give a benefit to a single person or entity or company or the like, requires very special consideration because of the fundamental principle that the laws we make here should be relevant to and applicable to everyone. That is, people are equal before the law and nobody is above the law.

I am very interested to know if an enforcement agency, in this case the police, are wanting to come to the parliament to get some redress to deal with something which may be quite meritorious. On the other hand, it may be to cover a circumstance where, frankly, their behaviour may have been less than adequate. I do not know the answer to that. I am not passing any judgement on it, but I do want that information before we finalise our position on that.

To date, those who have submitted to us suggest that, for employees or process servers or police officers or persons who are undertaking these types of duties, people who are going about their lawful duty, whether it is to read an electricity meter or whether it is to serve a document, there may need to be some dealing of that to facilitate it occurring, even in the circumstance of where there is notice of someone not entering, provided they are undertaking a lawful purpose. Secondly, they may need to ensure that there is no harassment or interference with their carrying out their lawful duties.

We have these laws to properly protect people's rights to not have people trespass on their property, and we need to ensure that the lawful entry and undertaking of lawful duties is balanced against that. With those words I indicate that we will not oppose the passage of the bill and look forward to the information that we sought on 19 October 2017. I know the Attorney-General's office has been very busy. They have been busy drafting up all sorts of bills to rush in here for urgent attention, but I am just reminding them that they promised this a month ago and I expect it.