South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill – Second Reading speech

Thursday 6 March 2025

S.E. ANDREWS (Gibson) (17:16): I rise to indicate my support for the South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill 2024, a bill that makes sensible reforms to the South Australian Civil and Administrative Tribunal Act 2013 (the act) to improve the operation of SACAT.

This bill makes two substantive changes to the act. Firstly, the bill amends part 3A of the act which currently provides for SACAT to transfer matters to the Magistrates Court where SACAT is barred from dealing with that federal matter under the Australian constitution. Secondly, the bill will address concerns raised by SACAT that the strict definition of 'legally qualified member' for the purposes of determining which SACAT members are allowed to make certain types of decisions or orders in SACAT unduly restricts the pool of members able to hear any particular matter, with resulting inefficiency for SACAT and all parties involved.

The act was amended in 2018 due to the constitutional implication recognised in the High Court in the case of Burns v Corbett that prevents a state tribunal that is not a court of a state exercising judicial power with respect to any matter of the kind described in sections 75 and 76 of the Australian constitution. The Burns v Corbett limitation will only apply when a state tribunal is exercising a judicial power. The SACAT, like most civil and administrative tribunals in Australia, exercises a mix of both administrative and judicial powers. An example that affects many residents in my electorate is SACAT's residential tenancies jurisdiction to resolve legal disputes between lessors and lessees under residential tenancy agreements.

The present issue arises because, in reacting to the Burns v Corbett decision, the scope of part 3A was limited to the types of matter that may fall under subsection 75(iii) where the commonwealth is a party, or subsection 75(iv) for residents of different states of the constitution. At the time, these were the only situations in which it was considered that the Burns v Corbett limitation would arise in practice in SACAT.

However, since part 3A was inserted into the SACAT Act, SACAT's jurisdiction has been expanded to include a broader range of matters. It also appears that several other jurisdictions have amended their equivalent civil and administrative tribunal legislation to provide for transfer to a court by the equivalent tribunal of federal matters generally—that is, any matter of a kind described in sections 75 and 76 of the constitution. Out of an abundance of caution, the bill will amend part 3A consistent with those interstate interpretations.

Onto the second substantive change to the act that the bill makes—

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S.E. ANDREWS: I am pleased to seek advice from the minister with regard to such a technical change to the act and so continue that currently the definition of 'legally qualified member' for the purposes of the SACAT Act and other legislation reserves the making of certain SACAT decisions and orders for legally qualified members of SACAT to mean a SACAT member with an Australian law degree plus at least five years relevant experience in a law-related field, who is designated by the SACAT president as a legally qualified member for the purposes of the SACAT Act.

I am pleased to endorse this bill which makes technical changes to the act to ensure that SACAT can continue to provide efficient, high-quality and low-cost dispute resolution for so many South Australians. I commend this important bill to the house.