Today, I introduce a short but important bill to amend the South Australian Employment Tribunal Act 2014. The amendments proposed in this bill would confirm that the South Australian Employment Tribunal (SAET) has the power to award costs to the parties in criminal proceedings. The bill would backdate this provision to 1 July 2017, which is when SAET was first conferred criminal jurisdiction over industrial offences that had previously been heard in the Magistrates Court. These are mainly offences under the Work Health and Safety Act 2012 and the Return to Work Act 2014.
The government has received advice that has cast doubt on the power of SAET to award costs in criminal proceedings. Costs have been routinely awarded in SAET in the exercise of its criminal jurisdiction. This is consistent with the longstanding practice in South Australia that costs apply in criminal prosecutions in the Magistrates Court, but is arguably contrary to section 52 of the act, which provides: 'Subject to this Act or a relevant Act, parties bear their own costs in any proceedings before the Tribunal.'
The Magistrates Court had the power to award costs in criminal proceedings when it exercised the jurisdiction over industrial offences that was subsequently transferred to SAET in 2017. It would appear that the lack of a clearly stated power in the SAET Act to award costs in criminal proceedings was an oversight at the time of the drafting of the legislation conferring the industrial offences criminal jurisdiction on SAET.
If costs do not apply in criminal proceedings before SAET, a successful prosecutor or a successful defendant would be denied compensation for their losses resulting from the prosecution. The situation in SAET would then stand in stark contrast to other criminal proceedings currently conducted in the Magistrates Court. This is clearly undesirable. An adverse ruling by the Supreme Court may potentially cast doubt over past costs orders made by SAET since 1 July 2017. Accordingly, the commencement of the bill would be backdated to that date.
I thank the relevant parties, including SAET, for their contribution in bringing this matter to the government's attention. I can say, as a former member of the opposition in this place when the legislation passed in 2017, that I thought it was a worthy initiative of the government. It seems that this oversight was not finalised, so we do need to clear it up. I commend the bill to members.