STATUTES AMENDMENT (SACAT) BILL

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:14): I indicate that I will be the lead speaker for the opposition on this bill, and I am aware that at least one other member wishes to make a contribution to the second reading debate. I speak on the Statutes Amendment (SACAT) Bill 2014 and, as indicated by the Leader of the Opposition, I propose to move amendments dealing with the jurisdiction to be advanced in the program of areas to come under the new SACAT.

This legislation follows last year's legislation to establish a generic civil and administrative tribunal. Ultimately, it is to receive multiple jurisdictions, as have been set out, and currently are provided for in some of our mainstream courts, some in specialty tribunals already and some under powers given to certain boards. This is consistent with what has happened in other jurisdictions, although for us in South Australia, we are the last state to establish a generic civil and administrative tribunal of this nature.

I think it is important to say that the opposition supported last year's legislation—the umbrella legislation—to get things started and to enable the court to be established and, of course, to be able to attract the funding and the like. It is not unique because, historically, I think the judicial determination of disputes in the community has gone in cycles. We seem to have gone from mainstream courts to the establishment of lower courts with limited jurisdictions, to an explosion of tribunals (certainly in my lifetime) of various different specialty jurisdictions. Some have been re-amalgamated and some have been transferred from state to federal jurisdiction, but all have been with the expectation that access would be more available and affordable for the general public, and generally with promises of a streamlined service and quicker access to justice. Some have failed and some have been quite successful.

It is fair to say that last year we did raise our concern in respect of some specialties being absorbed into a generic system, but we were prepared to support the general principle and give it a go. With goodwill on both sides and the very hard work that then needs to be undertaken to establish such an entity and to transfer these jurisdictions, all of that would be working in the same direction.

Before I go to the specifics of this bill, I would like to mention that, notwithstanding this nationwide movement towards central multiskilled tribunals for the purposes of administering these civil and administrative disputes, I was a little shocked yesterday to hear the Attorney's announcement that, in a world where we are putting everything under one umbrella, we are going to have a new tribunal, namely an industrial tribunal. It seemed to be a little inconsistent with the message from the government that they were wanting to not only have a generic tribunal structure but that those who are appointed with adequate training would be able to accommodate the specialty needs of a number of areas, as diverse as it is anticipated that will be, and yet we have the announcement of the government that we are going to have an industrial tribunal.

This is in a circumstance where we have already a dedicated Industrial Court, which it is fair to say has been stripped of a fair bit of work in recent years, particularly as a result of the determination to have industrial disputes, other than state and local government disputes in that area, transferred to the federal arena—more is the pity. I think that has been a disgraceful example of how disastrous that transfer worked out to be. Nevertheless, we live in hope that the federal government, under their proposed reviews, will ensure that the federal system, which is now operating and which South Australians (unless they work for the government) have to access, is significantly improved.

The Industrial Court here had a fair tranche of work taken out of its hands, so I think it is fair to say that there has been some other work that they have been given, not as a substitute but probably to give them something to do. On some days I am not sure what they all do still, but it is no reflection on any of the individual's capacity who serve in the Industrial Court. When you keep the structure and you take away a whole lot of other jurisdictions, you do wonder how that workload is able to continue with such a reduction in cases coming before them.

Perhaps they are able to advise and give support to industrial law generally in other ways and that is great, but frankly I had expected that, in a circumstance where a whole lot of work had left the Industrial Court, quite possibly those who were in the Industrial Court might have been offered positions in the new SACAT. I suppose it was open for them to apply, but of course, unless there is no loss of transfer benefits, with most of these things they usually do not. However, we now have a situation where the government has established the court hierarchy and that has occurred over the last few months.

Firstly, the new President of the SACAT will be Justice Greg Parker, who is an existing Supreme Court judge. I understand he will continue to do Supreme Court work and SACAT work on about a 50-50 basis, but he is appointed as the new president. The Deputy President will be currently serving District Court Judge Susanne Cole, also experienced in her work I think still in the environment and resources division, and, again, it is expected that Judge Cole will share her time (perhaps 50-50) and continue some of her mainstream duties there in the District Court together with work as the deputy for SACAT. The new registrar Ms Clare Byrt, who has also been appointed, obviously has considerable experience in relation to administrative appeal matters.

I thank each of those for their service to date in the jurisdictions they currently serve and for their forthcoming work, because we do appreciate that the establishment of a new jurisdiction, even though this one is to be on a graduated basis, is expensive in time, effort and money and it is not without a considerable amount of working in coalition with others to transition. I understand there is also a SACAT implementation team comprising of representatives and senior personnel in each of the relative departments, including of course the Attorney-General's Department, and they too have had to work quite hard to bring this together with an expected opening in late October.

Perhaps the leader had been a touch unkind in his concerns about the delay from July to September to October. Please appreciate that on this side of the house we do appreciate that there is considerable effort and the best will in the world will not always provide the expected starting dates. However, I thank them, as I say, and I congratulate them for the appointments that they have been given. I understand further that a number of staff of the existing Residential Tenancies Tribunal and Guardianship Board are entitled to transfer, together with other positions in each of these which have been advertised and which are now in the concluding period of selection and appointment.

One aspect which I would hope has streamlined some of the physical implementation of the new court, is that, I am advised, essentially, the current principal jurisdictions in Guardianship Board work and the Residential Tenancies Tribunal propose to remain in their existing premises in the ABC Building at Collinswood and in Pirie Street, respectively. This assists in being able to have a graduated transition to reach the projected dates of commencement. Some extra offices have been budgeted for, which I gather are on their way, to accommodate the appointed president and deputy and, hopefully, the registrar. If there is any comparison with the chambers that are available to Supreme Court judges at the moment, I expect Mr Parker will be wanting to spend a fair bit of time in his new office.

In any event, I had an opportunity to meet with him today on another matter and congratulate him on both of his appointments. I reminded him that you usually only get one of these opportunities once in a professional lifetime, so he had better make sure that the redecoration is as he likes because it will be there for a long time.

We are yet to hear as to whether the SACAT may be relocated to a completely new premises. We did hear from the Chief Justice during estimates, who identified certain jurisdictions which are expected to be accommodated in the courts precinct project. SACAT was not one of them, so that was a little bit disappointing to hear.

There will be a dedicated courts building to accommodate our current superior courts except for, I think, the Youth Court. Because of the age of most of the parties who are attending, obviously, it is thought that that should be kept independent. There is a proposal under consideration, as indicated by the Chief Justice, for the development of another courts tower or justice tower, which would include major government departments in the Attorney-General's and Justice area: DPP, Crown Solicitor and the like. Whilst I am not raising this to indicate that there is any commitment by the government to any of these, there is a general direction that there will be another opportunity in the same development to accommodate state government agencies that would be long-term tenants of the facility. I do not doubt that someone who was currently considering investing, participating or lodging an expression of interest or whatever process the government currently uses for these things—it is not called a PPP anymore, I was told by the Minister for Transport—where someone else comes along with a lot of money, builds something and then makes it available for government, may have an opportunity with this SACAT facility.

If that is the case, I am actually heartened to hear that it will be in the area, or is at least on its way to having a new home somewhere. It seems to me a little defeating of the purpose to have a generic court if it is actually going to be split up in different locations, a bit like the SA Water building that was all going to go into Victoria Square and is now accommodated in about four different areas. I just make the point that, if it is genuinely going to be a place where there will be relatively quick, affordable access to a judicial determination for the public, and all of the aspirational things that are there, then it eventually needs to have a home.

The only rider I raise with is that one of the criticisms I have heard from some people who are now in judicial positions themselves of having tribunals, or even a generic one, is that what happens in the end is they start to try to morph themselves into being a court. They forget that the reason they have been set up is to actually provide for simple administrative processes and not to be overloaded with burdensome and costly procedures, and that, whilst the rules of evidence are to be recognised in a general way, having long voir dires or having long legal argument is not really the focus of these types of judicial determining bodies. All too often what starts out to be a bipartisan and aspirational objective is shattered by the fact that it becomes as heavily burdened and overlapped as what they moved away from.

I make that comment because it is only more recently where concern has been raised about this, remembering here that what we are trying to do is keep something simple and accessible. The government, at least, is keen to save some money and try to not have all these specialty areas, but have it all in one area, and give the public that advantage of quick justice in exchange for the specialty, as I said with a theory of having people who are smart enough, well-trained enough and qualified enough to be able to apply their mind to multiple jurisdictions.

That in itself is not unheard of; there are people already now in the Supreme, District and Magistrates Courts who have to deal with all manner of different types of issues, including of course jumping from civil to criminal and the like. We know we have people out there who can do that, so all the arguments— for the moment at least—about having a specialty jurisdiction, to be able to make that quicker if you had that specialty, all evaporated, and we are going to sort of work together to try to make the system work. I had a significantly detailed briefing by Ms Jo Howski, a senior adviser on legal matters in the AttorneyGeneral's Department, and I appreciate her time and effort in that briefing as well as the follow-up material provided. With that I did receive a schedule of the proposed tranches of legislation which are to follow, and that outlined the five areas that the government was proposing to introduce over the period up to 2016 for the obvious reason, and we totally accept this, to try to have things run smoothly. Any attempt to bring all these jurisdictions together at once was probably going to be chaotic; that was not the government's word, but we accept that it would have been extremely burdensome to achieve and, therefore, that it would be over a graduated period. Stages 1 and 2 are now incorporated in this bill.

There are several areas, as we understand it, that are covered under this legislation and they are outlined in the Attorney's contribution. The Guardianship Board currently has Mental Health Act obligations dealing with community treatment orders—as well as other matters, but that is a very significant role—and there are duties it has in relation to guardianship matters. They are—at least for a short time—going to be, and probably currently are, vested with the determinations under the new Advanced Care Directives Act, which came into effect on 1 July. I do not know whether they have had new cases yet; they are probably hoping they do not, because it is expected that within a few months that new area will be transferred over to this new SACAT board in any event.

So there are a number of areas that they currently deal with and they will be transferred to SACAT and I will come back to them shortly. Then we have the Residential Tenancies Tribunal. They, of course, as is evident by their title, are a specialty court established to deal with disputes in respect of tenants and landlords in residential premises. I am old enough to remember when it was established.

It is interesting how common the themes were at the time about how we were going to have streamlined access to justice etc., but, in any event, they have had a number of roles in resolving these disputes, and there are also some provisions under the Retirement Villages Act and the like and they need to be accommodated. I will not have much else to say about the Residential Tenancies Tribunal. It seems undisputed that that is a classic area which could be accommodated under the new SACAT and from all we have heard it is progressing without dissent.

The third area which relates to the First Home and Housing Construction Grants Act decisions (this is about who gets and who does not get a grant), and the Freedom of Information Act and the Public Sector Act decisions are a little bit more complicated. I have not ever been involved in a Public Sector Act grievance by an employee which currently is dealt with under the Public Sector Grievance Review Commission. In any event, the Attorney would know, as we have had a fair bit of experience between us under the Freedom of Information Act, and so I will say to Judge Parker and others, expect to see a bit more of me when they set up this jurisdiction.

The District Court will probably be pleased to be relieved of that direct responsibility. However, they are not currently with a home. As a separate sort of tribunal they are dealt with in the District Court and Supreme Court jurisdictions, and the Supreme Court of course only in relation to very limited appeal work. I just make the point that we accept that these are likely to be in place in SACAT early next year. I think the president has indicated that he is hoping for February next year to have the personnel in place, and to be able to accommodate those, so I will let the registrar know to look forward to my application.

All of that is to be followed with the other three tranches. Stage 3 is to be an enormous number of jurisdictions, I will not repeat them, but they are to come in through April to July 2015 and, as I have indicated, the graduated process is to ensure that we have a smooth transition.

As the leader indicated, during the briefing we were offered, and it subsequently arrived in the mail, the stages up to stage 5. The disputes under the Valuation of Land Act were in stage 5, and today when I met with Justice Parker and an adviser of the government I was handed a document which now indicates that it is in stage 3 and that there was an error in the original indication. That is disappointing but we can live with it. In the meantime, though, of course, for the reasons outlined already by our leader, it is the opposition's view that one of the jurisdictions that should have priority is the disputes in relation to land valuation. As members would know, in addition to land tax, council rates, and the Emergency Services Levy, the Valuer-General's assessment on property also has an impact on our sewerage rates, and other levies and charges which apply a value-based scale.

This decision by the government in this year's budget, which we dealt with yesterday in some of our budget bills, makes provision for the introduction of a much broader emergency services levy it will apply. We say that is a backdoor land tax on homes, motor vehicles and properties where people have a principal place of residence which had otherwise been exempt. We will not discuss the merits of that because it is without any merit. However, they are in government and they have decided they are going to impose this.

It is of concern to our side that not only did we think that it was a good idea prior to the last state election and published our position to support a more streamlined process for review of Valuer-General's assessments—SACAT being the logical recipient of that jurisdiction—but with the introduction of the emergency services levy to be applied to the principal place of residence, that is, the homes of people and motor vehicles, this jurisdiction should be transferred now. That would be the ideal.

However, again we are reasonable on this side of the house and we accept that there has to be some time to implement it. The government says it is intending to provide it in 2016 and is telling us that it is getting ready to have it in the second quarter of next year (April to July) so we know it must already be working on it. Therefore, what it is proposing is not much different to what we are asking. As the leader says, we are seeking that there be some clear target put in the legislation to ensure that it is given priority because we are going to need it.

The other thing is that I was offered, and appreciated, the opportunity to meet with Judge Parker this morning, the President of SACAT. He raised with me the question of preparation and having adequate resources, and the like. It was clear from that meeting that up until our meeting this morning he had been led to believe that Valuer-General's matters were in stage 5. He had been working on that misapprehension as well, and not unreasonably. He indicated there are a number of other processes that are being set in train and therefore his understanding was that Valuer-General matters were down the track.

At present, and as we would expect, the Supreme Court Land and Valuation Division receives and hears these disputes. I understand His Honour Justice Blue has had that lucky task since the appointment of the Chief Justice and he receives a number of these applications. Justice Parker indicated this morning that, to his knowledge, none of them have gone to trial which may represent the excellent counsel representing the parties, or sensible management by Justice Blue, or a combination of the both. In any event, apparently that is the situation. As I say, and as we would expect, the disputes that are going to the Supreme Court are by large corporations or parties that have sufficient funds to be able to challenge these and spend the money on the filing fees and litigation costs.

As you would expect, there needs to be a significant consequence. If you are arguing about multimillion dollar assessments which you want to challenge to save multi millions, it can be justified and, unsurprisingly, these are the types of cases that end up in the Supreme Court. Mr and Mrs Average, more and more of whom are going to be captured quite overtly by the new taxes introduced by the government, at the moment are excluded and we need to be able to ensure that they are included.

We say that there is a case of urgency for the advancement of valuation disputes, and now we know the government are getting ready for the second quarter of next year. If they say we could not have it ready before 1 April next year, I can quite openly say to the Attorney-General that I thought about putting it on 1 April but there are a few things I have identified in my life where I have decided I do not use the 1 April date, being April Fools' Day, one of which was starting my own business. I specifically had all the corporate documents drawn so that the commencement of the company and the practice started on 2 April, not 1 April. Call me superstitious but, in any event, we picked the date in March. We are certainly open to accommodating that to make provision. The third area that I want to touch on is this question of the Mental Health Act. My understanding is that, under the Western Australian model, mental health act issues are determined by their new SACAT. I recently read a report of one of the judges of the SACAT who had done a review of their SACAT and said that everything was going swimmingly. That is a bit self-serving, I suppose, but, in any event, that was his assessment—and it may well be: I am not suggesting it is not.

However, that jurisdiction, and another, have determined that mental health matters are transferred to this generic tribunal structure and not kept separate. It may not be as urgent for the moment because it is expected that the current clients of the Guardianship Board will still be physically going to the dedicated premises which they currently occupy so, apart from having a SACAT label over the top and perhaps a few different personnel, it is going to be a dedicated environment for those customers. However, in other jurisdictions, including in Queensland, when they considered what jurisdictions should be absorbed into their civil tribunal, they did a whole review on it and there were strong recommendations from a number of the people high in health administration plus the private profession that that would be a retrograde step and it ought to be kept out of that jurisdiction.

I have read a few of those reports and there is some argument that suggests that it would be helpful to not have the clients of that jurisdiction, and/or the relatives who are often with them, to have to go into a mainstream court process and that it would be kinder to allow them to have a separate area. Ultimately, if they are going to be all in together, we will see, but I suppose we have some time to be able to at least give this a trial and see whether it makes a difference.

The structure and the dedicated environment are not the biggest concerns, though, for me. My concern is that the government is proposing that a sort of in-house psychiatrist be appointed for the purposes of these assessments and there are a number of concerns that have been raised. I am not going to hold up the debate today because we are still working on some of that material.

However, this bill, in addition to dealing with the jurisdictions (which, as I say, some other states have chosen not to include), at the end introduces some amendments to the Mental Health Act 2009 which are nothing to do with SACAT. I should say that they are associated to the extent that they relate to jurisdictions which are going to become part of SACAT. However, they appear to be largely work that has come out of a review of the Mental Health Act 2009 by the Chief Psychiatrist—who is, of course, a government appointee and in a senior position in the Department for Health.

I have met a few over the years. Obviously, one of their roles is to contribute quite a bit and assist the government, and indeed the parliament, as was the case when the Mental Health Act was rewritten, with very significant changes back in 2009, and we have had a few amendments since. Part of their job is to keep an eye on those reforms—some of which have been quite controversial—and make recommendations. The Chief Psychiatrist, in a report released in May this year, has covered quite an extensive area of reform that was recommended.

I have read the report and have attempted to quickly check what has been absorbed under this bill. The sort of thing that may not have much impact is what happens under certain orders under the Mental Health Act that psychiatrists are obliged to provide copies—usually in relation to detention arrangements—to both the Medical Board and the Chief Psychiatrist. It is the general view of the Chief Psychiatrist that this is unnecessary, that it is a duplication, so we will get rid of the obligation to go to the board and the Chief Psychiatrist will be responsible for it.

We have had long debates on the Mental Health Act over the question of treatments, and I am still at a complete loss as to why we have provision in the Mental Health Act for certain treatments. Apart from ECT, we still provide neurosurgery and prescribe psychiatric treatments, even though I remember asking the Chief Psychiatrist, ‘Where in the world is there still treatment under neurosurgical procedures applied for the purposes of dealing with mental health?’ The answer to that (to the best of her knowledge at the time) is nowhere. We simply do not use that form of intervention, thankfully. The shocking history—

The Hon. J.R. Rau: Isn’t that a completely separate issue?

Ms CHAPMAN: No, because you have amendments in here.

The Hon. J.R. Rau: But we’re not changing the status quo of the Mental Health Act.

Ms CHAPMAN: You are doing some things. My point in relation to this is that while we still allow for interventions in certain circumstances which are far more than just allowing for ECT—and that is under protection—we have a very strict regime of ensuring that certain personnel and parties keep an eye on that. It is important. If we are going to detain someone against their will—sometimes medically sedated, sometimes strapped down—or administer treatments against their will, for which the Mental Health Act under that significant review provides, we need to be very clear about how it is going to be supervised. A very strict regime was set up to ensure that this was supervised in a number of ways so that parents, guardians, relatives, and so on, of people who are in this tragic situation are protected. The medical profession understands the significance of it, and they were part of developing the models for protection and the consultation around that.

So when I see something that on the face of it appears to just streamline a process, it does ring some alarm bells for me. As I have only read the report of the Chief Psychiatrist and not gone through all the other amendments to the Mental Health Act which are captured in this act, I cannot say at this point that we wholly support them but, for the purposes of setting up the new structure of the SACAT, many of these may not be necessary. For convenience, they may be in the bill for that purpose. I will go through them in more detail and I will discuss them with the shadow minister for health, the Hon. Stephen Wade, and we will see if we can come to a landing in that regard.

I will briefly conclude by saying: under advance care directives—there is obviously this bit of transition hiatus—there is a briefing today, I think, being offered by the Minister for Health. The Law Society have raised some significant issues in the application of the law in relation to advance care directives. That may help to hinder things; if it does, in its application, we will accommodate any further transfer requirements. I indicate that, because it may be that we need to deal with some other aspects of the transition. That law has passed and we want to get on with it, but we also want to make sure that it is done in a manner that is not going to cause confusion to the public.