South Australian Employment Tribunal (Miscellaneous) Amendment Bill

Mr PEDERICK (Hammond) (12:45): I rise to support the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2018. I acknowledge that we are in this position with this legislation because of a constitutional issue raised in the High Court decision of Burns v Corbett [2018] HCA 15.

The constitutional issue is that the Burns v Corbett decision concerned the exercise of the New South Wales Civil and Administrative Tribunal's (NCAT) jurisdiction under the Anti-Discrimination Act 1988 (NSW), which is the equivalent of South Australia's Equal Opportunity Act 1984. The decision applies to prevent bodies that are not courts of the state, within the meaning of section 77 of the Commonwealth Constitution, from exercising federal judicial power in relation to one of the subject matters under sections 75 and 76 of the Commonwealth Constitution, which relevantly include disputes in which the commonwealth or a commonwealth agency is a party, disputes involving a state or state agency and a resident of another state, and disputes involving residents of different states.

The Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018 has been enacted to address the Burns v Corbett issue in relation to the jurisdiction of the South Australian Civil and Administrative Tribunal (SACAT), and the approach taken in relation to SACAT was to confer jurisdiction on the Magistrates Court. In relation to the South Australian Employment Tribunal, the South Australian Employment Tribunal Act 2014 (the SAET Act) establishes the South Australian Employment Tribunal. Importantly, the characteristics of the South Australian Employment Tribunal are different from those of the South Australian Civil and Administrative Tribunal.

There are two parts to the South Australian Employment Tribunal: the tribunal and the tribunal in court session, otherwise known as the South Australian Employment Court. Whilst the South Australian Employment Court is likely to be a court of the state that can determine disputes involving the exercise of federal jurisdiction, the Crown Solicitor's Office has advised that legislative amendment is suggested to ensure that jurisdiction to determine such matters is directly vested in the South Australian Employment Court.

There has been a question raised about how many proceedings are affected, and that number has not been arrived at. As I have indicated, it is unclear how many South Australian Employment Tribunal proceedings may be affected by the Burns v Corbett decision. There is currently one case before the South Australian Employment Tribunal brought under the Equal Opportunity Act 1984, McDonald v South Australia, where argument has been adjourned pending consideration of the issue.

The McDonald case involves a resident of Victoria, who is the complainant, who contends that the Parole Board has unlawfully discriminated against him. This amendment will remove any doubt as to the South Australian Employment Court's jurisdiction to hear proceedings involving federal diversity jurisdiction and will prevent the Burns v Corbett issue arising in subsequent proceedings.

What is happening with this legislation and with the introduction of this bill to this place is that the bill inserts a new section 6AB into the South Australian Employment Tribunal Act, which has the effect of directly vesting federal diversity jurisdiction into the South Australian Employment Court. The bill also addresses a consequential issue that has arisen in relation to supplementary panel members (SPM). These are people with special industry or subject matter expertise who may sit on tribunal matters as supplementary members.

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 allow the President of the South Australian Employment Tribunal to elect to constitute the tribunal with a member and one or two supplementary panel members (non-judicial members). However, the South Australian Employment Court can only be constituted of judicial members (see section 19(1)(a) of the SAET Act); therefore, an inconsistency is created between section 19 of the SAET Act and the six acts.

As per the current section 4(1) of the SAET Act, other legislation—for example, the six acts—has priority over anything inconsistent with the SAET Act. Therefore, the bill contains a provision which makes it clear that SPMs cannot be members of the SAET, sitting as the South Australian Employment Court, in proceedings involving federal diversity jurisdiction. This is legislation to clean up any confusion over who has jurisdiction.

Being involved in politics as I have been before I was a member, but also as a member of parliament in my 13th year, you hear these conspiracy theories that some people pursue about what is constitutional and what is not. From what I understand, there is a federal challenge that dates back to 2007 in regard to proceedings in the federal parliament, and there would be other procedures on the go as well. But it is essential that we do the right thing with this legislation, as we are, and tidy this up so that we do not have court time being filled up.

This is the relevant legislation to do that, and it is highly appropriate. It will make it clear to all parties involved that we can get on with the job and in due course have an act in place that supports what we are trying to attend to here today. With those few words, I support the legislation and commend the bill to the house.

Debate adjourned on motion of Dr Harvey.

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