South Australian Employment Tribunal (Miscellaneous) Amendment Bill

Second Reading

I was saying that the Law Society had identified an alternative way to remedy the defect that would prevail if we have interjurisdictional matters, and that was essentially to have a wholesale rewrite of the act. That is something we are looking at because of the matters I had raised prior to the luncheon adjournment. In any event, may I place on the record the government's appreciation of the dedicated service of Mr Tim Mellor during this year, for his presidency of the Law Society and the advice that he has provided to the government as president, particularly to the advancement of legislation, reform and matters that are significant to the legal profession in its operation. We value that advice.

Similarly, as Attorney-General, I value the advice of other legal institutions and, whilst today I do not wish to hold up the house in detailing their contributions, I note that Mr Mellor's term of presidency will expire at the end of this year and that there will be a new president appointed. For that reason, I particularly thank him for his service and the Law Society generally in ensuring that we, here in the parliament, have a wide spectrum of views and considered recommendations that the government values. I think it is fair to say that members of the opposition would join me in recognising the valuable advice that they give.

May I also briefly respond to commentary that the lead speaker for the opposition made to the effect that the government was dealing with this miscellaneous piece of legislation and that it was consistent with the government not having enough business to do. I would like to remind the house, particularly for the benefit of new members, that the business of this house as a parliament is to ensure that the three arms—the executive, the parliament and the judiciary—all continue to have their important role in our democracy. That includes that in the event of the High Court, in this case, striking down the validity of being able to advance the determinations in dispute when it is interjurisdictional, then we as a parliament need to act.

We as a government have a responsibility to bring these matters to the attention of the parliament with the sufficient expertise of the resources of the Attorney-General's Department—in this case, parliamentary counsel, Legislative Services, the Crown Solicitor's Office—who all work together to ensure that we are able as a government to bring to the parliament not only the information about the deficiency that that now leaves us in the operational workings of the judiciary in these disputes but also arm them with the statutory means by which it can be remedied, that is, present a bill to the parliament that will resolve that problem. That is part of the business of government. I take that role responsibly, and I think it needs to be dealt with as expeditiously as possible.

The Burns v Corbett decision of the High Court was handed down on 18 April this year. The officers of the Attorney-General's Department have worked as diligently as possible to ensure that, firstly, SACAT was given sufficient amendments to its act to enable the resources of the Magistrates Court to be utilised to deal with their matters. Once there was an identified assessment about whether that would reflect any deficiency in SAET, then the government approved it and brought to the parliament this bill to remedy it. Far from being just some miscellaneous, tacked on reason for filling up the legislative time, it is an important part of business and we take it very seriously.

Finally, can I also mention that the bill before the house does not contain a clause that was defeated in the Legislative Council that would have reinstated a $20,000 cap on compensation that could be awarded by magistrates of the South Australian Employment Tribunal against a person convicted of an offence. That clause was intended to correct legislation inadvertently removing the cap that commenced on 1 July 2017, when the jurisdiction over employment-related offences was transferred from the Magistrates Court to the South Australian Employment Tribunal. The defeated clause would have reinstated that cap as it applies to the tribunal's magistrates but would have allowed larger awards of compensation to be made by the tribunal's judges in deserving cases.

The consequence of the clause being defeated is that there is a continued potential for inequitable outcomes in the award of the compensation between jurisdictions, as the magistrates of the Magistrates Court remain subject to a $20,000 cap. The entitlement to compensation of a victim or a surviving family member, when the accused is convicted, would continue to depend on whether the offence was a general criminal offence and tried by a magistrate in the Magistrates Court or an employment-related offence and tried by a magistrate in the South Australian Employment Tribunal.

Despite the concerns expressed by the opposition and crossbench members in the Legislative Council—and I do not make any reflection in respect of the vote of the Legislative Council because they have obviously voted down the $20,000 cap—the government will not insist on the defeated clause. I would like to make this point and make it clear to the parliament that I am advised that the president of the tribunal—that is, Judge Steven Dolphin—was consulted and was of the view that, given the relatively small number of affected cases, the proposed change was unlikely to create any additional burden for the tribunal or extend the time for hearing cases.

I do not understand fully why the Legislative Council opposition and crossbenchers would act in this way. If they had consulted the president, they may have dealt with it differently. In any event, we are not here to insist on the defeated clause. It is disappointing that the parliament does not take the opportunity to reverse a change that was made accidentally and without proper consultation or consideration of the full implications of the effect of the changes; nevertheless, that is the position they have taken.

The government considers that a person's entitlement to compensation when an offence is tried by a magistrate should be the same whether the magistrates sits in the Magistrates Court or the South Australian Employment Tribunal. Be that as it may, the sky is not going to fall in in relation to that. What is important here is that we have a new mechanism under the bill which will enable interjurisdictional matters to still be heard and properly dealt with. This bill remedies that. I thank members for their contribution and ask that it be moved through its final passages. I understand there is no request for committee.