Statutes Amendment (SACAT) Bill

Second Reading

I wish to thank all members who have made a contribution to the debate on the Statutes Amendment (SACAT) Bill 2019. In particular, I recognise the indication of support for the bill by the opposition's leader, other than reference to the appointment by the Attorney-General without the Governor's endorsement in respect of assessors. I certainly hope to advise the committee in due course of the importance of this change and why we have presented it for consideration.

In respect of the matters that have been excluded from the bill, I think it is important that we place on the record our position. One of the new jurisdictions that was considered but is not being transferred to SACAT is the jurisdiction under the Births, Deaths and Marriages Registration Act 1996, currently exercised by the Magistrates Court, in relation to applications for approvals and reviews regarding change of sex and gender identity of a child. These provisions were inserted into the Births, Deaths and Marriages Registration Act later, in 2017, as part of the amendments to repeal the sexual reassignment act and amend the Births, Deaths and Marriages Registration Act to provide for alternate, less onerous processes for recognising changes of sex or gender.

SACAT had originally been scheduled to receive the Magistrates Court's previous broader jurisdiction over applications for change of sex and gender identity under the now repealed sexual reassignment act. The functions transferred in this bill are a small subset of the sexual reassignment act work previously undertaken by the Magistrates Court, which was originally planned to transfer to SACAT. Accordingly, I provide that explanation in the hope that it might assist those following this debate.

The second area of jurisdiction that was not included relates to the appeals function currently conferred on the District Court's Administrative and Disciplinary Division under the Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013. This act postdated the original list of proposed SACAT jurisdictions and was added following a request from the then minister for health to transfer this jurisdiction to SACAT on the basis that SACAT offered a more accessible appeal forum than the ADD.

The third is the appeals function currently conferred on the ADD under the Tattooing Industry Control Act 2015, being appeals against decisions of the commissioner to disqualify a person from providing tattooing services or against a direction of an authorised officer requiring a person providing tattooing services to comply with specified requirements in order to minimise a risk to the safety of the public. This act postdated the original list of proposed SACAT jurisdictions and was added following an inquiry from Consumer and Business Services about whether these appeals should be transferred for consistency, since most other ADD appeals functions are proposed to transfer to SACAT.

A further matter raised was in relation to the decisions under the Electoral Act that are currently appealable to the ADD with an appeal function to transfer to SACAT under this bill. They are:

  • a decision by the Electoral Commissioner or an officer as to the enrolment of any claimant for enrolment;
  • a decision by an electoral registrar on an objection to the enrolment of an elector on a roll;
  • a decision by the Electoral Commissioner regarding the registration of a political party;
  • a decision by the Electoral Commissioner regarding the registration of a how-to-vote card; and
  • a decision of a prescribed class taken under this act by the Electoral Commissioner or an officer.

I am further advised that it does not appear that there are any prescribed in the regulations under the act at this stage.

There was also a query in respect of the difference between the employment agents and labour hire providers. I indicate to members that, whilst a comprehensive description of this is provided on the SafeWork SA website, for the benefit of the house I indicate that a person is required to be licensed as an employment agent if that person is, for monetary or other consideration, carrying on the business of acquiring workers for persons who desire to employ or engage others in any kind of work or acquiring employment for persons who desire to be employed or engaged by others in any kind of work.

The following organisations are excluded from the definition of an 'employment agent' and are not required to hold a licence:

  • a charitable organisation carrying on its activity on a non-profit basis;
  • an organisation or association that administers a group training scheme, jointly funded by the commonwealth and state governments, for the purposes of obtaining apprentices or trainees for persons who desire to employ or engage such a person in any kind of work, or obtaining employment for apprentices or trainees; and
  • an organisation that operates a labour hire business.

A labour hire arrangement is one where a labour hire company or agency provides individual workers to a client or to a host, where the workers are under the host company's direction. However, the labour hire company remains ultimately responsible for the workers—that is, their employee's remuneration. I trust that the information provided will assist members in understanding the matters that have been raised.

Finally, I indicate that I am not sure whether a comprehensive list of the persons consulted was provided at the briefing. I am happy to quickly run through who they are. The industry bodies consulted in relation to this bill were the Australian Health Practitioner Regulation Agency, the Australian Nursing and Midwifery Federation (SA Branch), the Ambulance Employees Association SA Inc., the Australasian College of Podiatric Surgeons, the Australian Acupuncture and Chinese Medicine Association; the Australian and New Zealand Society of Nuclear Medicine, the Australian College of Mental Health Nurses (SA Branch) Inc., the Australian College of Midwives (SA Branch) Inc. and the Australian College of Nursing.

Also consulted were the Australian Dental Association (SA Branch), the Australian Dental Prosthetists Association, the Australian Friendly Societies Pharmacies Association Inc., the Australian Medical Association SA, the Australian Natural Therapists Association, the Australian Osteopathic Association, the Australian Pharmacy Council Ltd, the Australian Physiotherapy Association (SA Branch), the Australian Physiotherapy Council, the Australian Podiatry Association and the Australian Psychological Society.

Other industry bodies consulted include the Australian Society of Medical Imaging and Radiation Therapy, the Australian Traditional Medicine Society, the Chinese Medicine and Acupuncture Society of Australia, the Chiropractors Association of Australia (SA Branch), the Council on Chiropractic Education Australasia Ltd, the Dental Hygienists Association of Australia (SA Branch) Inc. and the Federation of Chinese Medicine and Acupuncture.

Also consulted were the Health Consumers Alliance of SA Inc., the Institute of Private Practising Psychologists, the National Aboriginal and Torres Strait Islander Health Worker Association, Occupational Therapy Australia Ltd, Optometry South Australia Inc., Paramedics Australasia Ltd (SA Chapter), the Pharmaceutical Society of Australia Limited (SA Branch), the Pharmacy Guild of Australia (SA Branch), the SA Salaried Medical Officers Association (SANT) President, the Australian Dental and Oral Health Therapists' Association Inc, the Society of Hospital Pharmacists of Australia (SA and NT Branch) and the Society of Natural Therapists and Researchers Inc.

The industry bodies consulted in respect of the proposed amendments to the Veterinary Practice Act were the Animal Welfare League of SA Inc., the Australian Veterinary Association SA/NT Division, the Avicultural Society of South Australia Inc., the Dog and Cat Management Board, Dogs SA, the Feline Association of SA, Greyhound Racing SA, Horse SA; Livestock SA, RSPCA SA Inc., Thoroughbred Racing SA, the Veterinary Defence Association Australia Ltd and the Veterinary Surgeons Board of SA.

The industry bodies consulted in respect of the amendments to the Architectural Practice Act were the Architectural Practice Board of SA, the Australian Institute of Architects (South Australian Chapter) and the Association of Consulting Architects (South Australian Branch). In respect of the consumer and business services acts, the industry bodies consulted were the Air Conditioning and Mechanical Contractors' Association; the APA Group, which is the Australian gas pipelines; the Association of Building Consultants Inc.; and the Australian Institute of Building (SA Chapter).

Other industry bodies consulted include the Australasian Timber Flooring Association, the Australian Automotive Aftermarket Association, the Automotive Repairers Council of Australia, Business SA, Communications Electrical Plumbing Union SA, the Construction Industry Training Board, the Hair and Beauty Industry and Employers Association of SA, the Housing Industry Association of SA, the Master Builders Association of SA, Master Landscapers of SA, the Master Painters, Decorators and Signwriters Association of SA, the Master Plumbers Association, the Motor Trade Association of SA, the National Electrical and Communications Association of SA, the National Fire Industry Association, the Office of the Technical Regulator and the Royal Automobile Association of SA.

I would like to refer to two of those organisations that were consulted, again to give some reassurance to the house of the consideration of the submissions given and the incorporation into the bill that is currently before the house. I wish to firstly place on the record my appreciation to those industry bodies that responded. This is a valuable contribution to lawmaking, in particular the importance of ensuring that we take into account all the practical applications that occur in relation to what we do here. I have certainly found this most valuable and important now, in government, to ensure that these are incorporated, the practical implementation, where it is brought to our attention.

By letter of 16 April 2019, the then president of the Australian Medical Association (South Australia) Inc., Professor William Tam, responded to the draft legislation, indicating there was a concern relating to the reduction of health professionals on the panel of assessors to one. He states:

The AMA(SA) has significant concerns regarding section 109 of the draft bill 'Substitution of Part 3' beginning on page 38 of the bill, and particularly the first section: '8—Participation of Assessors on Tribunal'. In paragraphs (1), (2) and (3) of this section the proposed changes reduce the number of health professionals on the panel of assessors from having two of four members in total, to one of three members in total. In cases involving doctors, this will mean there is one doctor, rather than two doctors, on each panel, a significant reduction in proportional terms.

The AMA(SA) considers this to be inconsistent with the stated function of the tribunal under the Health Practitioner Regulation National Law, which is, in large part, to make a determination as to whether a practitioner has engaged in professional misconduct, unprofessional conduct or unsatisfactory professional practice—and to make that determination in alignment with the views and perspectives of the practitioner's peers.

The definitions of these types of conduct as set out in the definitions section of the Health Practitioner Regulation National Law (Schedule 2, Part 1, 5, pp.8-84) include, in each case, a requirement to measure whether the conduct or professional practice was 'substantially below the standard reasonably expected of a practitioner of [an] equivalent level of training and experience'. This is a determination that is most appropriately made by a health professional of the same profession as the practitioner before the tribunal.

While the importance of also having non-medical representation on the panel is fully appreciated, it is the AMA(SA)'s position that the reduction in representation by doctors [on] the panel will shift the balance of the panel away from one with equal representation of health and non-health practitioners, and ultimately dilute both the core functions of the tribunal and the potential for successful outcomes based on profession-specific expertise and evidence.

I thank Mr Tam for this submission. It is an important matter he has alerted us to, as the proponents of this bill, and I am pleased to advise the house that his recommendations were incorporated and resolved in the bill currently before the parliament. Again, this is a classic example where that has been of great assistance to us and, I hope, to the parliament, when considering this matter.

The second matter relates to the Australian Veterinary Association SA Division. They provided a comprehensive submission on the draft Statutes Amendment (SACAT) Bill under consideration and raised a number of matters. I do not wish to read out all their matters of concern; they are of no less significance, but I just highlight one aspect of their submission. They state:

The Draft Bill sets out the nature of the panel of the assessors who would assist in hearings. This is listed as—

and then they replicate clause 64 of the bill. I will not read that, but I am sure those following this will understand what we are talking about. They go on to state:

Where the Tribunal sits with assessors, at least one should be a veterinarian and preferably a veterinarian with direct experience of clinical general practice (or the same kind of veterinary practice as is the subject of the complaint).

Can I say that again these matters have been incorporated in the bill that has been presented for the parliament's consideration, along with some other tidy-up matters. I thank them particularly for raising those issues.

I think it is fair to say that, because we rely so heavily on persons of the same discipline in training and experience to provide advice in relation to the alleged misconduct, usually of a peer, it is important that we value their work and appreciate the significance of their contribution in these determinations. It is also fair to say that it is not an easy job to do—that is, to step up and be critical of one's peers in making these determinations or in providing the evidence upon which an assessment can be relied on these determinations—and we thank them for doing it.

Sometimes it brings some frustration and criticism from others in the profession, particularly if the person who is being assessed has a particular view about the reliability or validity of what is being outlined in the evidence or report of the assessor. It is a pretty thankless task, in some ways, but it is an important one. Where we have these bodies, including various tribunals, to review this material and make decisions on it, it is absolutely critical that we have this information.

A further matter has been raised by the opposition, relating to the amendment of section 22 of the SACAT Act. This is, I suppose, to streamline the appointment of assessors who are to be appointed to this role. The proposal in this bill is to amend that section to provide that assessors are to be appointed by the Attorney-General on the recommendation of the SACAT president, rather than by the Governor on recommendations of the Attorney-General, as is the current practice.

This has been highlighted by the opposition as raising some concern, to the extent that they do not propose to support this proposed amendment. Currently, ministers appoint assessors for use in the District Court and the Administrative and Disciplinary Division proceedings under their particular acts. In light of this, and since acts contemplating the use of assessors generally require panels of multiple assessors to be appointed, the requirement for government appointment for each assessor will become overly burdensome.

I think it is fair to say that the machinery of this bill will not rise or fall without the passage of this matter. However, it is a matter that has the safeguard of the appointment being only on the recommendation of the SACAT president. The SACAT president, as is known to the parliament—I will refresh your memory if you do not remember—is Her Honour the Hon. Justice Judy Hughes, a member of the Supreme Court, and she undertakes this role.

It is fair to say that the current person holding the role of president or Attorney-General is not the standard upon which one makes law in this place. We do need to consider that, whoever occupies these positions, there is sufficient safeguard and supervision in relation to such appointments. To be perfectly frank, if the opposition were concerned that just the Attorney-General was going to have this role without advice from a party such as the SACAT president, I think that would be well founded.

Certainly, in my time, I have seen different persons occupy the role of Attorney-General and I would not have trusted some of them with making decisions. Nevertheless, there have been different colours through this role at different times. I want to reassure the house that, in considering this process, this is a matter that comes on the recommendation of the SACAT president and that it is not going to be a process where any Attorney-General of the time can pick and choose who they like in relation to this appointment. I hope that gives some reassurance.

If it is of assistance, I am further advised that there would be over 100 assessors for the South Australian Health Practitioners Tribunal matters. I am sure that, whilst our newly reappointed Governor is ready and willing to serve in any capacity he is called upon to do so, going through the exercise of working out all these assessors for appointment is an executive responsibility, which, I think, has been identified as being an onerous and, at the very least, cumbersome process, and therefore we would urge the opposition to reconsider their position in that regard.

In respect of SACAT, which is now under consideration for the extra work that will increase their workload, can I conclude by thanking Her Honour Justice Judy Hughes, members of her tribunal and members of her staff for two things: firstly, for the continued operation of a tribunal that has been outlined by the speakers as necessary for the efficient and accessible resolution of disputes as expeditiously as possible and, secondly, for her willingness to undertake these extra jurisdictions and absorb them into her court.

As the Attorney-General, I remark that she is one of the pleasing heads of jurisdictions and extra work does not raise any complaints from her. In fact, I can genuinely say that, when asked if she might need extra resources, she has frequently indicated that she has been able to absorb the extra workload within her staff.

I recognise the work of SACAT as a result of the report undertaken by former Supreme Court Justice David Bleby QC. He provided quite an extensive report. His number one recommendation was that the operations of SACAT, which had been split geographically—that is, guardianship matters in the ABC building, as it is often described, at Collinswood, and the Residential Tenancies Tribunal type matters in the city—should be in one location. I am pleased to report to the parliament that that has occurred and I am pleased to have been in office at the time, supervising that transfer. I have been to an opening, invited back Justice Parker, the first President of SACAT in South Australia, and generally been able to celebrate the fact that they are now operating from one premises.

This is very important because of two things: firstly, it is one location for the purposes of the work they do and the camaraderie that provides in respect of tribunal members and staff and, secondly, the Public Advocate has also moved her office to metropolitan Adelaide and is now geographically proximate to the SACAT operations.

The Public Advocate staff, in particular those who are making submissions to SACAT for those people who are largely disadvantaged in our community and require the support of the former guardianship board (now SACAT), provide representation, appointments of those to undertake that responsibility and, of course, the ancillary orders that are necessary to support persons who may be aged or infirm, who may have a dispute in their family connection or who may have no-one. It is an important role that we undertake in that regard. So that, too, has occurred and I think it has been an important initiative; it means that there has been some advance in that regard.

Recently, I attended the new offices of the Public Advocate and she has settled in her team. It seems that they are all very happy. Some are catching the train into work, and some are looking at the challenges of parking a vehicle, because for years they have been travelling out to Collinswood. Now they have the opportunity to access public transport, which has been a boon for a number of them. I am advised by some that their shopping habits have expanded because they are more proximate to retail facilities, which may or may not be a good thing. New-shoe therapy has never gone astray. Nevertheless, there are some real pluses in relation to the general morale of those teams who have to work constructively to ensure that we provide services for those persons in need.

With that, I again thank members who have made a contribution to this debate, and we will be available, of course, to answer anything else we can in committee.