South Australian Employment Tribunal (Miscellaneous) Amendment Bill

Second Reading

The legislative amendments contained in the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2018 relate to the exercise of the jurisdiction of the South Australian Employment Tribunal to hear federal diversity jurisdiction matters. The bill addresses the constitutional issue raised in the recent High Court decision of Burns v Corbett [2018] HCA 15. That decision applies to prevent bodies that are not courts of the state from exercising federal judicial power in relation to federal diversity matters, namely, those in which the commonwealth, or a person suing or being sued on behalf of the commonwealth, is a party, or between states, between residents of different states or between a state and a resident of another state.

It follows from the High Court decision that the South Australian Employment Tribunal can only exercise jurisdiction to decide matters involving federal diversity issues if the tribunal is a court of the state. However, the South Australian Employment Court is established under the South Australian Employment Tribunal Act 2014 as a part of the South Australian Employment Tribunal. The South Australian Employment Court is a court of the state and hence is capable of exercising federal diversity jurisdiction. The bill ensures that jurisdiction in relation to federal diversity matters is directly vested in the South Australian Employment Court.

The bill defines 'federal diversity jurisdiction' by reference to sections 75(iii) and (iv) of the Australian Constitution. These provisions are clear and self-explanatory and do not need further elaboration in the bill. An example of when the jurisdiction might arise in the South Australian Employment Tribunal is if an injured worker, or a disputant in industrial relations or other employment-related matters, were to move interstate to live with supporting family members.

This constitutional issue also arose in respect of the South Australian Civil and Administrative Tribunal, or SACAT, as we know it in South Australia, in response to which parliament passed the Statutes Amendment (SACAT Federal Diversity Jurisdiction) Act 2018. However, that act and the present bill deal with the issue in a different way in view of the different characteristics of SACAT and the South Australian Employment Tribunal. The bill contains a number of consequential provisions, including to mitigate the risk of constitutional invalidity by not permitting the non-judicial supplementary panel members appointed to the South Australian Employment Tribunal to sit as part of the South Australian Employment Court in proceedings that involve federal diversity matters.

Some of the acts that confer jurisdiction on the South Australian Employment Tribunal enable the president to elect to constitute the tribunal with a judicial member and supplementary panel members to provide the South Australian Employment Tribunal with special industry or subject matter expertise. These are the Equal Opportunity Act 1984, the Education Act 1972, the Technical and Further Education Act 1975, the Fire and Emergency Services Act 2005, the Public Sector Act 2009 and the Work Health and Safety Act 2012.

It is fair to say that, given the High Court decision, we necessarily must address this matter if we are to deal with the very contemporary issue of circumstances where one or both of the parties may be living, operating or registered in another state. The SACAT matter, which has already been through the parliament, was addressed by the appointment of magistrates in the Magistrates Court, to enable them to adjudicate those decisions and ensure that there was an available body to determine those issues in dispute.

In the real world, it is not an uncommon problem. In that jurisdiction, we found that very often one or another of the parties, particularly in housing rental disputes and tenancy and occupation disputes, frequently involved a party who resided interstate. I was surprised at that and I am sure other members would be surprised to learn that this was a very common situation. I thought South Australians would own the flat, the house, the apartment or the mansion and that, obviously, South Australians would live in them. However, we found that a very significant number of dwellings in South Australia are owned by corporate entities that are registered or headquartered in Melbourne. Of course, they then become the party in respect of eviction, unpaid rental or property damage disputes that SACAT are called upon from time to time to resolve.

The decision of Burns v Corbett meant that we had to jump straight into an immediate action to try to ensure that those parties who were waiting to have their rent paid, or for relief from paying rent, or who were in dispute as to who was responsible for damage or neglect, or failing on behalf of a landlord—all those disputes—had a forum in which those disputes could be adjudicated, and so we had to move fairly quickly.

Similarly, in the South Australian Employment Tribunal's areas of responsibility from time to time they will need to have somebody within the court structure to deal with the matter. I know that they have Magistrate Ardlie down there. As I have indicated, the president is a District Court judge, and indeed a number of deputy presidents are also District Court judges in the South Australian Employment Tribunal.

With these amendments, we are able to establish a proposal for diversity proceedings. The clause to be inserted under the proposed section 6AB will deal with diversity proceedings, as follows:

Proposed section 6AB provides that where a determination of a matter within the jurisdiction of the South Australian Employment Tribunal (SAET), or that would otherwise be within the jurisdiction of SAET, involves the exercise of federal diversity jurisdiction, the matter is to be dealt with by the Tribunal sitting as the South Australian Employment Court (the Employment Court). Federal diversity jurisdiction is defined to mean jurisdiction of a kind referred to in section 75(iii) and (iv) of the Commonwealth Constitution, whereby the High Court has jurisdiction over matters in which the Commonwealth is a party, or over matters arising between the States, residents of different States or between States and residents of another State. This clause refers to such proceedings before the Employment Court as diversity proceedings.

If, in a matter before the Tribunal not sitting as the Employment Court, the Tribunal is of the opinion that the determination of the matter involves, or may involve, the exercise of federal diversity jurisdiction, then the Tribunal must refer the proceedings to the Employment Court for determination. (This clause also refers to such proceedings as diversity proceedings). The matter may be remitted to SAET if the Employment Court is of the opinion that the matter does not involve the exercise of federal diversity jurisdiction.

In determining diversity proceedings the Employment Court may not be constituted of supplementary panel members. The Employment Court has the same jurisdiction, powers and functions in relation to the proceedings that the Tribunal (other than in Court Session) would have had if it could exercise federal diversity jurisdiction. The usual practices and procedures that apply to the Tribunal other than in Court Session will apply to the Employment Court unless, and to the extent, the Court determines otherwise.

The proposed clause also makes provision for the enforcement of purported orders (including monetary orders) of SAET, whether made before or after the commencement of the clause, that are invalid because determination of the proceedings that gave rise to the order involved the exercise of federal diversity jurisdiction. It also provides for proceedings in relation to the variation or revocation of such orders by the Employment Court (which are to be treated as 'diversity proceedings'). The clause also provides for immunity in relation to actions or purported actions taken pursuant to, or in relation to the enforcement of, a purported order or monetary order in good faith.

In the event that I have not fully covered that, I seek leave to have the explanation of clauses inserted in Hansard without my reading it. I otherwise commend the bill to members for consideration.

Leave granted

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal. The intention is for the measure to come into operation on the day on which it is assented to by the Governor.

Part 2—Amendment of South Australian Employment Tribunal Act 2014

3—Amendment of section 4—Relevant Acts prevail

This clause makes a consequential amendment to make sure that a relevant Act cannot override the provisions of proposed section 6AB.

4—Insertion of section 6AB

This clause inserts proposed section 6AB.

6AB—Diversity proceedings

Proposed section 6AB provides that where a determination of a matter within the jurisdiction of the South Australian Employment Tribunal (SAET), or that would otherwise be within the jurisdiction of SAET, involves the exercise of federal diversity jurisdiction, the matter is to be dealt with by the Tribunal sitting as the South Australian Employment Court (the Employment Court). Federal diversity jurisdiction is defined to mean jurisdiction of a kind referred to in section 75(iii) and (iv) of the Commonwealth Constitution, whereby the High Court has jurisdiction over matters in which the Commonwealth is a party, or over matters arising between the States, residents of different States or between States and residents of another State. This clause refers to such proceedings before the Employment Court as diversity proceedings.

If, in a matter before the Tribunal not sitting as the Employment Court, the Tribunal is of the opinion that the determination of the matter involves, or may involve, the exercise of federal diversity jurisdiction, then the Tribunal must refer the proceedings to the Employment Court for determination. (This clause also refers to such proceedings as diversity proceedings). The matter may be remitted to SAET if the Employment Court is of the opinion that the matter does not involve the exercise of federal diversity jurisdiction.

In determining diversity proceedings the Employment Court may not be constituted of supplementary panel members. The Employment Court has the same jurisdiction, powers and functions in relation to the proceedings that the Tribunal (other than in Court Session) would have had if it could exercise federal diversity jurisdiction. The usual practices and procedures that apply to the Tribunal other than in Court Session will apply to the Employment Court unless, and to the extent, the Court determines otherwise.

The proposed clause also makes provision for the enforcement of purported orders (including monetary orders) of SAET, whether made before or after the commencement of the clause, that are invalid because determination of the proceedings that gave rise to the order involved the exercise of federal diversity jurisdiction. It also provides for proceedings in relation to the variation or revocation of such orders by the Employment Court (which are to be treated as 'diversity proceedings'). The clause also provides for immunity in relation to actions or purported actions taken pursuant to, or in relation to the enforcement of, a purported order or monetary order in good faith.

Debate adjourned on motion of Mr Brown.