South Australian Employment Tribunal (Miscellaneous) Amendment Bill

In committee.

(Continued from 25 October 2018.)

Clause 1.

The CHAIR: On the last occasion we were in committee, we were on clause 1. Does any honourable member have a further contribution on clause 1?

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.I. LUCAS: This was the particular clause that saw me report progress at clause 1, because I think there was an indication at the second reading and then at the opening to clause 1 that there would appear, at least on that occasion, and probably still, numbers that may well defeat clause 4 of the bill. That was the first I was aware that there clearly were no amendments to be moved to the legislation. Nothing had been filed, but I was unaware that there was going to be opposition to any particular clause, and clause 4.

I am aware of the publicly stated positions of various members when last we discussed this. The Leader of the Opposition has just indicated that he will continue to oppose clause 4, and I suspect other members may as well. However, I want to put on the record the reasons why the government has moved clause 4 in the manner that it has and the supporting argument for the retention of clause 4 in the bill.

The government's advice is that clause 4 of the bill does not introduce a new cap on the amount of compensation that can be awarded by a magistrate in the South Australian Employment Tribunal. Clause 4 restores the cap on compensation that had existed until it was accidentally removed in 2017. Until 1 July 2017, criminal jurisdiction over so-called industrial offences was dealt with by two magistrates of the Magistrates Court who had been designated industrial magistrates and were co-located with the South Australian Employment Tribunal: their honours magistrates Ardlie and Lieschke. Industrial offences included breaches of the Work Health and Safety Act 2012 and other employment-related legislation.

From 1 July 2017, criminal jurisdiction over these employment-related offences was transferred from the Magistrates Court to the South Australian Employment Tribunal, where they are still dealt with by magistrates Ardlie and Lieschke but now as deputy presidents of the South Australian Employment Tribunal and not as members of the Magistrates Court. The Magistrates Court has, at all relevant times, been subject to a statutory cap of $20,000 in the amount of compensation that its members could award when convicting a person of a criminal offence. This cap applied to magistrates Ardlie and Lieschke prior to 1 July 2017, when they exercised criminal jurisdiction over industrial offences as members of the Magistrates Court.

The cap only applies to members of the Magistrates Court, so it does not now apply to magistrates Ardlie and Lieschke when they are exercising criminal jurisdiction as members of the South Australian Employment Tribunal. The removal of the cap from magistrates Ardlie and Lieschke was not deliberate—this is the government's advice—and was only discovered when brought to the former government's attention by the Crown Solicitor's Office in late 2017. I interpose that this was before the election and under the former government.

Since 1 July 2017, the South Australian Employment Tribunal has dealt with nine criminal proceedings, mainly in Work Health and Safety Act matters. Compensation was awarded in two of those matters to surviving family members. In each of those two cases, the South Australian Employment Tribunal magistrate has awarded compensation in excess of the $20,000 cap, with an average of $60,000 compensation awarded against individual defendants.

If clause 4 were not enacted as drafted in the bill, the entitlement to compensation of a victim or surviving family member when the accused is convicted would depend on whether the offence was a general criminal offence and tried by a magistrate in the Magistrates Court or was an employment-related offence and tried by a magistrate in the South Australian Employment Tribunal. This has the potential to produce inequitable outcomes. A person's entitlement to compensation when an offence is tried by a magistrate should be the same, whether the magistrate sits in the Magistrates Court or in the South Australian Employment Tribunal.

The bill also introduces a provision that would allow a South Australian Employment Tribunal magistrate to refer a matter to a judge of the South Australian Employment Tribunal if the magistrate is of the view that an award of compensation should be made that exceeds the $20,000 cap. This complements an existing provision that allows a South Australian Employment Tribunal magistrate to refer a matter to a judge if the magistrate is of the view that a sentence should be imposed on the defendant that exceeds the maximum fines and terms of imprisonment the magistrate is able to impose.

The president of the South Australian Employment Tribunal has been consulted on this aspect of the bill and has advised that, given the relatively small number of affected cases, the proposed change is unlikely to create any additional burden for the South Australian Employment Tribunal or extend the time for hearing cases.

In advising honourable members about this particular issue, given that there is a decision to be taken by honourable members in relation to the situation where a South Australian Employment Tribunal magistrate believes the issue is important enough to justify an argument for compensation greater than the $20,000—and that may well be the case in the two instances to which honourable members have referred—there is a provision for a South Australian Employment Tribunal magistrate to refer the matter to a judge of the South Australian Employment Tribunal, and the judge is not limited by the $20,000 cap. So the judge could direct, order or make a judgement in relation to compensation in and of the same order that might be done.

As the government's advice has made clear, with the removal of clause 4 potentially we will have inequitable outcomes in relation to whether or not you have a magistrate sitting in the Magistrate's Court or a magistrate sitting in the South Australian Employment Tribunal having two different limits in relation to the extent of compensation. Importantly, if the bill was to stay in the form the government has advised—and, as I said, these recommendations from the Crown Solicitor's Office were raised prior to the change of government, so this is not something that has been driven by the new government in any way—the advice was that this was an unintended consequence of the former government's changes in July 2017.

The Crown Solicitor's Office, under the former government, identified the issue towards the end of last year, but obviously parliament had risen, given the impending election in March 2018. The new government is introducing legislation as a result of the other issue, and this particular issue was included in it on the basis of the advice the former government and the new government received in relation to what was seen by the Crown Solicitor's Office as being an inequitable set of outcomes.

Importantly, on the issue that has concerned honourable members, that is, that in some way an appropriate level of compensation might not be awarded, the government's advice is that the current system would allow that to occur under the proposed structure in the bill where the magistrate would refer the decision to a judge of the South Australian Employment Tribunal. For those reasons, the government supports the existing clause 4 and clearly will oppose the removal or deletion of it by honourable members.

The Hon. K.J. MAHER: I thank the government for its indication of opposition to opposition to the clause, I think is the correct way to describe it. The opposition remains opposed to clause 4. I thank the Treasurer for stating his case and his views about why it should remain in the bill; however, we are not persuaded. I will not go over the contribution I made in my second reading speech, and I think it was even more forcefully put by the Hon. Irene Pnevmatikos in her second reading contribution.

If inequities are identified and need harmonisation, similarly, too, as we discussed with a previous bill that we were just debating, we can come back and fix those up so that the inequities reflect what we are doing here today. Just because there are differences in two different areas is not a reason not to do something in one area; it may well be a reason to do something in both areas. If that really is a concern of the government, if this clause is not included, we look forward to coming back very quickly and fixing up the problem that the government thinks there is.

The Hon. J.A. DARLEY: I indicate that I will support the government's position on this matter.

The Hon. F. PANGALLO: We will oppose this clause 4, and support the opposition. The opposition leader has made some valid points on revisiting this somewhere down the track. Families are already traumatised by workplace tragedy or incidents and they should not be subjected to long, drawn-out proceedings, and this clause could certainly see that happening and could also cause a log jam in that jurisdiction, so we will oppose it and support the opposition on it.

The Hon. T.A. FRANKS: I have some questions of the government at clause 4 with regard to the contribution just made by the Treasurer. The Treasurer has indicated that the president of the South Australian Employment Tribunal was consulted with regard to the referral by the deputy presidents to a judge. Was the president of the South Australian Employment Tribunal consulted with regard to the appropriateness of a $20,000 cap?

The Hon. R.I. LUCAS: My advice is that he was consulted on the bill that is before the parliament at the moment with clause 4 in it. My advice is we received no comment one way or another about the appropriateness or otherwise of clause 4.

The Hon. I. PNEVMATIKOS: I need to clarify a few issues and perhaps make some comments as well. The industrial magistrates who hear these cases are also judicial officers of the tribunal, so they wear two hats in any event. It is feasible that the provision as contained in clause 4, if applied, would work out as follows: one industrial magistrate hears the matter, believes that the matter requires an award of compensation beyond the $20,000, the matter is referred on and the other industrial magistrate, sitting as a deputy president, can hear that matter.

That would suggest actually introducing a further stage in the process, introducing further delays and additional costs in terms of pursuing a matter, rather than acknowledging that these industrial magistrates are judicial officers and are able to exercise the discretion and make the decision accordingly. There have been only two cases of the nine where they have awarded criminal compensation beyond that amount. That does not suggest judges who are either incompetent or judges who are exercising the discretion in an unfettered manner.

The Hon. R.I. LUCAS: My advice is that the honourable member's summary there is not accurate. In the case that the honourable member made, they can only refer it to a judge, not to each other.

The Hon. I. PNEVMATIKOS: I understand that, but what I am suggesting is that clause 4 would anticipate that occurring, though. If an industrial magistrate decided that the matter was beyond compensation in terms of that cap, then it is quite feasible that an industrial magistrate sitting as a judge—the other industrial magistrate—could hear the matter.

The Hon. R.I. LUCAS: My advice is that that is not accurate; that is, industrial magistrates Ardlie and Lieschke are magistrates, not judges.

The Hon. I. Pnevmatikos interjecting:

The Hon. R.I. LUCAS: No, they are not.

The Hon. I. Pnevmatikos: They are both deputy presidents as well.

The Hon. R.I. LUCAS: My advice is they are not judges. In the example the honourable member has indicated, where one of the industrial magistrates, under clause 4 of the bill as envisaged, was to make a decision to refer it to a judge, they would have to refer it to a judge and not to either Ardlie or Lieschke because they are not judges. That is the advice I have been given. In the circumstances that the member has outlined, my advice is that is not possible.

The Hon. T.A. FRANKS: What was the opinion of the deputy presidents with regard to this $20,000 cap issue? Were the deputy presidents' opinions sought?

The Hon. R.I. LUCAS: My advice is there was no comment from the deputy presidents on the $20,000 limit. I think, as I have outlined, this is not something that has been driven by the new government. The advice given to the new government, and to the former government prior to the election, was that this was an inadvertent change as a result of the decisions that were taken back in July 2017; that is, this $20,000 compensation limit for magistrates had been accepted.

However, when the changes were enacted by the former government and the parliament endorsed them, this particular issue was not picked up. It was only subsequently that the Crown Solicitor's Office picked up the particular issue and highlighted the concerns both to the former government prior to the election and then, after the election, to the new government. When this other issue, which is the more substantive issue for this legislation, came as a result of the court decisions, the advice from Crown law was to include this particular issue in the bill.

The Hon. T.A. FRANKS: Getting back to my point, the very two people who have implemented what we now seek to remove, inadvertent or not, were not consulted with regard to this change; is that the case? I wanted a simple answer to that question. I did not want a lecture about the fact that we have a new government now. We also have a new parliament now.

The Hon. R.I. LUCAS: I have not offered any lectures at all. I am seeking to provide information to the committee, with due respect. My advice is that the bill was sent to the president. What discussions the president undertook with deputy presidents, magistrates and others within his jurisdiction was an issue for him. I cannot give you advice as to what level, but the first question, which was either from yourself or the Hon. Ms Pnevmatikos, was about what advice the president provided. The answer was that we had not received any advice.

On the follow-up question about what advice was given to the deputy presidents, we have not had any advice on that, but the bill was sent to the president, as is appropriate. The normal course is that it goes to the head honcho of a particular agency. He or she may well consult with others within their jurisdiction, or they may or may not respond as the leader of that particular agency themself. I cannot help the honourable member. I am not trying to be difficult.

I cannot help the honourable member as to the level of consultation involved, but I am told that it is not the practice of the government, through the Attorney-General's Department, to send it to each and every officer within a particular agency. It goes to the head of the agency, who is the boss, and what consultation the boss undertakes is entirely a matter for that particular person.

The Hon. T.A. FRANKS: What was the advice of the Law Society with regard to clause 4?

The Hon. R.I. LUCAS: My advice is that there was no comment from the Law Society on that particular issue.

The Hon. T.A. FRANKS: Can the Treasurer clarify whether there was advice on the bill from the Law Society and at what point the bill was given to the Law Society seeking their response?

The Hon. R.I. LUCAS: Yes, there was a response from the Law Society. In answer to the honourable member's question as to what advice the Law Society provided on this particular aspect of the bill, my advice is that there was no comment from the Law Society on that particular aspect of the bill.

The Hon. T.A. FRANKS: Can the Treasurer please outline the two situations that have resulted in the averaged-out figure of $60,000 of compensation? What were the two particular situations where that amount was deemed appropriate, and what were the two amounts?

The Hon. R.I. LUCAS: Whilst we check our advice, my recollection is that the Hon. Ms Pnevmatikos put on the record the details of two cases, and I think she has referred to those again, so I suspect we are talking about the same two cases, but I will seek further advice. My recollection from the previous debate is that the Hon. Ms Pnevmatikos put on the record the details about the two cases when we were last discussing this issue.

The Hon. T.A. FRANKS: I imagine not just myself but also other members of this council today received correspondence from the Treasurer's office with regard to citing the $60,000 average figure of the two cases that were awarded over the $20,000 cap, so I assume that the Treasurer, before authorising that communication with us, had the details. Could he now provide them?

The Hon. R.I. LUCAS: Again, I think this was placed on the record by the Hon. Ms Pnevmatikos, but I will stand corrected if that is not the case. In one matter $20,000 was awarded to each of the spouse and three children of the deceased—a total of $80,000. In the second matter there were two defendants and $10,000 was awarded against each defendant to the two parents and three siblings of the deceased.

These have been the only cases in which SAET has awarded any compensation since 1 July 2017. Again, the Hon. Ms Pnevmatikos can correct the record but I think the Hon. Ms Pnevmatikos did place, substantially, that information on the record when we were last discussing it.

The Hon. T.A. FRANKS: If the Treasurer could clarify that none of those amounts were individually over the amount of $20,000 but that it was indeed a cumulative figure—

The Hon. R.I. Lucas: Yes.

The Hon. T.A. FRANKS: Is the Treasurer concerned that it was Judge Jennings' noncumulative treatment of such compensation that is the problem here?

The Hon. R.I. Lucas: What do you expect me to clarify again?

The Hon. T.A. FRANKS: A previous ruling has seen that these compensation matters have been treated as noncumulative and that that cap has applied in a noncumulative way. Is that not the error that this parliament should be correcting rather than reducing the cap?

The Hon. R.I. LUCAS: My advice is that we are not aware of the particular judgement to which the member is referring.

The Hon. T.A. FRANKS: The Greens will be opposing clause 4.

The Hon. I. PNEVMATIKOS: The two cases are Campbell v MacGillivray and Boland v BHP Billiton. Just as a point of clarification, how many deputy presidents do we have in the tribunal and what are their names (not including auxiliary judges who might be called in from time to time to cover overflow)?

The Hon. R.I. LUCAS: There are a few of them. We may have to correct the record later on if we find an extra one or something, but just quickly we think that the list of deputy presidents includes Gilchrist, Farrell, Kelly, Hannon and Calligeros. As I said—

The Hon. I. Pnevmatikos: What about Justice Dolphin, who is president?

The Hon. R.I. LUCAS: You said deputy presidents. As I said, we have not come prepared with a list of the complete membership of the South Australian Employment Tribunal. That is a quick response; if we need to correct the record, and we find another deputy president or two, or whatever it is, we are happy to correspond with the honourable member. But as I said, on a quick reflection, that is a list of five, anyway. There may well be one or two others.

The Hon. I. PNEVMATIKOS: I appreciate that Lieschke is on leave at the moment, so that might be the reason for a smaller list, but anyway, it would be interesting to find out how many judicial members we have at the tribunal.

Clause negatived.

Remaining clause (5) and titled passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:11): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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