No. 31

 

                                                     VOTES AND PROCEEDINGS

 

                                                                      OF THE

 

                                                         HOUSE OF ASSEMBLY

 

                                                                                                                                  ____________

                                                                                                                                                      

 

 

                                                                        TUESDAY 29 NOVEMBER 1994

 

 

 1         Meeting of House

                  The House met pursuant to adjournment.  The Speaker (Hon. G.M. Gunn) took the Chair and read prayers.

 

2         Message from the Governor

                  The following Message from the Governor was received and read:

 

            Assent to Bills                                                                                                                                                                                Message No. 12

                  The Governor informs the House of Assembly that, in the name and on behalf of Her Majesty The Queen, the following Acts have been assented to during the present Session, viz. -

                  No. 69 of 1994 - an Act to amend the Financial Institutions Duty Act 1983.

                  No. 70 of 1994 - An Act to repeal the Small Business Corporation of South Australia Act 1984.

                  No. 71 of 1994 - An Act to amend the Electrical Products Act 1988.

                  No. 72 of 1994 - An Act to amend the Pollution of Waters by Oil and Noxious Substances 1987.

                  Government House, 29 November 1994                                                                                                R.F. Mitchell, GOVERNOR

 

3         Conference - Correctional Services (Private Management Agreements) Amendment Bill

                  The Minister for Correctional Services (Hon. W.A. Matthew) moved - That the sitting of the House be continued during the Conference with the Legislative Council on this Bill.

                  Question put and passed.

 

4         Conference - Land Agents Bill, Land Valuers Bill and Conveyancers Bill

                  The Deputy Premier (Hon S.J. Baker) reported as follows:

 

                  I have to report that the Managers have been at the Conference on the Bills, which was managed on the part of the Legislative Council by the Attorney-General the Hon. K.T. Griffin and Hon. S.M. Kanck, Hon. J.A.W. Levy, Hon. A.J. Redford and Hon. B.J. Wiese and we there received from the Managers on behalf of the Legislative Council the Bills and the following resolution adopted by that House: That the disagreement to the amendments of the House of Assembly be insisted on. And thereupon the Managers for the two Houses conferred together and it was agreed that we should recommend to our respective House that -

 

                                                                                                                          Land Agents Bill 1994

 

                  As to Amendment No. 1:

                  That the House of Assembly do not further insist on its amendment.

                  As to Amendment No. 2:

                  That the House of Assembly do not further insist on its amendment but makes the following amendment in lieu thereof:

                  Clause 3, page 1, after line 21 -  Insert definition as follows:

                              “Court” means the Administrative and Disciplinary Division of the District Court of South Australia;

                  And that the Legislative Council agrees thereto.

                  As to Amendments Nos. 3 to 10:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  As to Amendment No. 11:

                  That the House of Assembly do not further insist on its amendment but makes the following amendment in lieu thereof:

                  New clause, page 6, after line 22 -  Insert new clause as follows:

            12A. Entitlement to be sales representative  (1)  A person must not employ another person as a sales                         representative unless that other person -

                  (a)     -

                              (i)      holds the qualifications required by regulation; or

                              (ii)    is registered as an agent under this Act or has been registered as a sales representative or manager, or licensed as an agent, under the repealed Land Agents, Brokers and Valuers Act 1973; and

                                          (b)     has not been convicted of an offence of dishonesty; and

                                          (c)     is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth.

                  Penalty:  Division 5 fine.

                                                      (2)     A person must not -

                                                                  (a)     be or remain in the service of a person as a sales representative; or

                                                                  (b)     hold himself or herself out as a sales representative; or

                                                                  (c)     act as a sales representative,

                                                      unless he or she -

                                                                  (d)     -

                                                                              (i)            holds the qualifications required by regulation; or

                                                                              (ii)          is registered as an agent under this Act or has been registered as a sales representative or manager, or licensed as an agent, under the repealed Land Agents, Brokers and Valuers Act 1973; and

                                                                  (e)     has not been convicted of an offence of dishonesty; and

                                                                  (f)      is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth.

                  Penalty:  Division 7 fine.

                  And that the Legislative Council agrees thereto.

                  As to Amendments Nos. 12 to 14:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  As to Amendments Nos. 15 and 16:

                  That the House of Assembly do not further insist on its amendments.

                  As to Amendments Nos. 17 and 18:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  As to Amendment No. 19:

                  That the House of Assembly do not further insist on its amendment but makes the following amendment in lieu thereof:

                  Clause 44, page 19, lines 11 to 14—Leave out the definition of “sales representative” and insert:

                              “sales representative” includes a former sales representative;

                  And that the Legislative Council agrees thereto.

                  As to Amendment No. 20:

                  That the House of Assembly do not further insist on its amendment but makes the following amendment in lieu thereof:

                  Clause 45, page 20, lines 1 to 9 -  Leave out subclause (2) and insert -


                  (2)     There is proper cause for disciplinary action against a sales representative if the sales representative has acted unlawfully, improperly, negligently or unfairly in the course of acting as a sales representative.

                  And that the Legislative Council agrees thereto.

                  As to Amendments Nos. 21 to 26:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  As to Amendment No. 27:

                  That the House of Assembly do not further insist on its amendment.

                  As to Amendment No. 28:

                  That the Legislative Council do not further insist on its  disagreement thereto.

                  As to Amendment No. 29:

                  That the House of Assembly do not further insist on its amendment.

                  As to Amendments Nos. 30 to 35:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  As to Amendment No. 36:

                  That the House of Assembly do not further insist on its amendment.

                  As to Amendment No. 37:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  As to Amendment No. 38:

                  That the House of Assembly do not further insist on its amendment.

                  As to Amendment No. 39:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  And that the House of Assembly makes the following consequential amendments to the Bill -

                  1.         Long title, page 1, line 7 -  After “Act 1973;” insert “to amend the District Court Act 1991;”.

                  2.        New clause, page 20, after line 28 -  Insert new clause as follows:

            47A. Participation of assessors in disciplinary proceedings  In any proceedings under this Part, the Court will, if the judicial officer who is to preside at the proceedings so determines, sit with assessors selected in accordance with schedule 1.

                  3.        Clause 51, page 23, after line 27 - Insert subclause as follows:

                              (2a) The Commissioner may not delegate any of the following for the purposes of the agreement:

                                                      (a)     functions or powers under Part 2;

                                                      (b)     the approval of classes of accounts at banks, building societies or credit unions under Division 2 of Part 3;

                                                      (c)     the appointment, reappointment or termination of appointment of a person to administer an agent's trust account or of a temporary manager under Division 2 of Part 3;

                                                      (d)     functions or powers under Division 3 of Part 3;

                                                      (e)     power to request the Commissioner of Police to investigate and report on matters under Part 5;

                                                      (f)      power to commence a prosecution for an offence against this Act.

                  4.        New schedule, after page 27 -  Insert new schedule as follows:

SCHEDULE 1

Appointment and Selection of Assessors for Court

                              (1)      The Minister must establish a panel of persons who may sit as assessors consisting of persons representative of agents.

                              (2)     The Minister must establish a panel of persons who may sit as assessors consisting of persons representative of members of the public who deal with agents.

                              (3)     A member of a panel is to be appointed by the Minister for a term of office not exceeding three years and on conditions determined by the Minister and specified in the instrument of appointment.

                              (4)     A member of a panel is, on the expiration of a term of office, eligible for reappointment.

                              (5)     Subject to subclause (6), if assessors are to sit with the Court in proceedings under Part 4, the judicial officer who is to preside at the proceedings on the complaint must select one member from each of the panels to sit with the Court in the proceedings.


                              (6)     A member of a panel who has a personal or a direct or indirect pecuniary interest in a matter before the Court is disqualified from participating in the hearing of the matter.

                              (7)      If an assessor dies or is for any reason unable to continue with any proceedings, the Court constituted of the judicial officer who is presiding at the proceedings and the other assessor may, if the judicial officer so determines, continue and complete the proceedings.

                  5.        New schedule, after page 29 -  Insert new schedule as follows:

SCHEDULE 3

Amendment of District Court Act 1991

                              (1)      The District Court Act 1991 is amended -

                                          (a)     by striking out subsection (2) of section 3;

                                          (b)     by striking out paragraph (d) of section 7 and substituting the following paragraph:

                                                      (d)     the Administrative and Disciplinary Division.;

                                          (c)     by striking out subsection (3) of section 8 and substituting the following subsection:

                                                      (3)     The Court, in its Administrative and Disciplinary Division, has the jurisdiction conferred by statute.;

                                          (d)     by striking out from section 20(3) and (4) “Administrative Appeals Division” wherever occurring and substituting, in each case, “Administrative and Disciplinary Division”;

                                          (e)     by striking out from section 43(3) “Administrative Appeals Division” and substituting “Administrative and Disciplinary Division”;

                                          (f)      by striking out from section 52 “Administrative Appeals Division” and substituting “Administrative and Disciplinary Division”;

                                          (g)     by inserting after the present contents of section 52, as amended by this clause (now to be designated as subsection (1)) the following subsection:

                                                      (2)     The Court, in its Administrative and Disciplinary Division, is bound by the rules of evidence in -

                                                                  (a)     disciplinary proceedings; and

                                                                  (b)     proceedings related to contempt.

                              (2)     A reference in any Act or instrument to the Administrative Appeals Court or to the Administrative Appeals Division of the District Court, is so far as the context permits, to be taken to be a reference to the Administrative and Disciplinary Division of the District Court.

                  And that the Legislative Council agrees thereto.

                             

Land Valuers Bill 1994

 

                  As to Amendment No. 1:

                  That the House of Assembly do not further insist on its amendment but makes the following amendment in lieu thereof:

                              Clause 3, page 1, after line 15 -  Insert definition as follows:

                              “Court” means the Administrative and Disciplinary Division of the District Court of South Australia;.

                  And that the Legislative Council agrees thereto.

                  As to Amendments Nos. 2 to 7:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  As to Amendment No. 8:

                  That the House of Assembly do not further insist on its amendment.

                  As to Amendments Nos. 9 to 11:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  And that the House of Assembly makes the following consequential amendments to the Bill -

                  1.         New clause, page 3, after line 13—Insert new clause as follows:

            9A. Participation of assessors in disciplinary proceedings In any proceedings under this Act, the Court will, if the judicial officer who is to preside at the proceedings so determines, sit with assessors selected in accordance with schedule 1.

                  2.        Clause 16, page 5, after line 19 -  Insert subclause as follows:

                              (2a) The Commissioner may not delegate for the purposes of the agreement -

                                                      (a)     power to request the Commissioner of Police to investigate and report on matters under this Act;

                                                      (b)     power to commence a prosecution for an offence against this Act.

                  3.        New schedule, after page 7 -  Insert:

SCHEDULE 1

Appointment and Selection of Assessors for Court

                  (1)      The Minister must establish a panel of persons who may sit as assessors consisting of persons representative of land valuers.

                  (2)     The Minister must establish a panel of persons who may sit as assessors consisting of persons representative of members of the public who deal with  land valuers.

                  (3)     A member of a panel is to be appointed by the Minister for a term of office not exceeding three years and on conditions determined by the Minister and specified in the instrument of appointment.

                  (4)     A member of a panel is, on the expiration of a term of office, eligible for reappointment.

                  (5)     Subject to subclause (6), if assessors are to sit with the Court in proceedings under this Act, the judicial officer who is to preside at the proceedings on the complaint must select one member from each of the panels to sit with the Court in the proceedings.

                  (6)     A member of a panel who has a personal or a direct or indirect pecuniary interest in a matter before the Court is disqualified from participating in the hearing of the matter.

                  (7)      If an assessor dies or is for any reason unable to continue with any proceedings, the Court constituted of the judicial officer who is presiding at the proceedings and the other assessor may, if the judicial officer so determines, continue and complete the proceedings.

                  And that the Legislative Council agrees thereto.

 

Conveyancers Bill 1994

 

                  As to Amendment No. 1:

                  That the House of Assembly do not further insist on its amendment but makes the following amendment in lieu thereof:

                  Clause 3, page 1, after line 20 -  Insert definition as follows:

                              “Court” means the Administrative and Disciplinary Division of the District Court of South Australia;

                  And that the Legislative Council agrees thereto.

                  As to Amendments Nos. 2 to 7:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  As to Amendment No. 8:

                  That the House of Assembly do not further insist on its amendment.

                  As to Amendments Nos. 9 to 14:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  As to Amendment No. 15:

                  That the House of Assembly do not further insist on its amendment.

                  As to Amendments Nos. 16 to 19:

                  That the Legislative Council do not further insist on its disagreement thereto.

                  And that the House of Assembly makes the following consequential amendments to the Bill -

                  1.         New clause, page 20, after line 13 -  Insert new clause as follows:

            47A. Participation of assessors in disciplinary proceedings  In any proceedings under this Part, the Court will, if the judicial officer who is to preside at the proceedings so determines, sit with assessors selected in accordance with schedule 1.

                  2.        Clause 51, page 22, after line 27 -  Insert subclause as follows:

                              (2a) The Commissioner may not delegate any of the following for the purposes of the agreement:

                                                      (a)     functions or powers under Part 2;

                                                      (b)     the approval of classes of accounts at banks, building societies or credit unions under Division 2 of Part 4;


                                                      (c)     the appointment, reappointment or termination of appointment of a person to administer a conveyancer's trust account or of a temporary manager under Division 2 of Part 4;

                                                      (d)     functions or powers under Division 3 of Part 4;

                                                      (e)     power to request the Commissioner of Police to investigate and report on matters under Part 6;

                                                      (f)      power to commence a prosecution for an offence against this Act.

                  3.        New schedule, after page 25 -  Insert -

SCHEDULE 1

Appointment and Selection of Assessors for Court

                              (1)      The Minister must establish a panel of persons who may sit as assessors consisting of persons representative of conveyancers.

                              (2)     The Minister must establish a panel of persons who may sit as assessors consisting of persons representative of members of the public who deal with conveyancers.

                              (3)     A member of a panel is to be appointed by the Minister for a term of office not exceeding three years and on conditions determined by the Minister and specified in the instrument of appointment.

                              (4)     A member of a panel is, on the expiration of a term of office, eligible for reappointment.

                              (5)     Subject to subclause (6), if assessors are to sit with the Court in proceedings under Part 5, the judicial officer who is to preside at the proceedings on the complaint must select one member from each of the panels to sit with the Court in the proceedings.

                              (6)     A member of a panel who has a personal or a direct or indirect pecuniary interest in a matter before the Court is disqualified from participating in the hearing of the matter.

                              (7)      If an assessor dies or is for any reason unable to continue with any proceedings, the Court constituted of the judicial officer who is presiding at the proceedings and the other assessor may, if the judicial officer so determines, continue and complete the proceedings.

                  And that the Legislative Council agrees thereto.

 

                  Ordered - That the recommendations of the Conference be taken into consideration on motion.

 

5         Petitions Nos 98 to 102

                  The Clerk announced that the following Members had lodged Petitions for presentation:

 

                  98 and 99 The Minister for Emergency Services (Hon. W.A. Matthew) and Mr Foley, from 138 residents of South Australia, requesting that the House urge the Government not to cut the Education and Children's Services budget.

 

                  100  Hon. F.T. Blevins, from 766 residents of South Australia, requesting that the House urge the Government to reject all Audit Commission recommendations in relation to water charging.

 

                  101  Mrs R.K. Geraghty, from 3011 residents of South Australia, requesting that the House urge the Government to cease negotiations with Healthscope and undertake talks with all user groups to ensure a viable public Modbury Hospital.

 

                  102  Mr S.R. Leggett, from 81 residents of South Australia, requesting that the House urge the Government to restore the subsidy paid to the Marion Council to ensure the continued service of the Community Bus.

 

6         Answers to questions

                  Answers to questions on the Notice Paper Nos 51, 131, 138 and 140 and a question without notice were tabled by the Speaker.

 


7          Papers

                  The following Papers were tabled:

 

                  By the Deputy Premier (Hon. S.J. Baker) -

                              Commissioner for Consumer Affairs - Report, 1993-94

                              Legal Practitioners Complaints Committee - Report, 1993-94

                              Legal Practitioners Disciplinary  Tribunal - Report, 1993-94

                              South Australian Office of Financial Supervision - Report, 1993-94

 

                  By the Treasurer (Hon. S.J. Baker) -

                              Liquor Licensing Commissioner, Report on the Gaming Machines Act, 1993-94

                              Friendly Societies Act 1919 - General Laws - Manchester Unity

                              Police Superannuation Act - Regulations - Pensioners and Lump Sums

 

                  By the Minister for Industrial Affairs (Hon. G.A. Ingerson) -

                              Construction Industry Long Service Leave Board - Report, 1993

 

                  By the Deputy Premier representing the Minister for Industry, Manufacturing, Small Business and Regional Development  (Hon. J.W. Olsen) -

                              South Australian Country Arts Trust - Report, 1993-94

                              Harbors and Navigation Act - Regulations -

                                          Restricted Areas - Glenelg

                                          Position-indicating radio beacon

 

                  By the Minister for Health (Hon. M.H. Armitage) -

                              Chiropractors Board of South Australia - Report, 1993-94

                              South Australian Psychological Board - Report, 1993-94

                              Public Works Committee - Mount Gambier Regional Health Services - Response by Minister                                                              for Health

 

                  By the Minister for Housing, Urban Development and Local Government Relations (Hon. J.K.G. Oswald)

                              Corporation By-laws -

                                           City of Mitcham - No. 2 - Council Land

                                           City of Munno Para -

                                                      No. 1 - Repeal of By-laws

                                                      No. 2 - Permits and Penalties

                                                      No. 3 - Ice Cream and Produce Vehicles

                                                      No. 4 - Removal of Garbage at Public Places

                                                      No. 5 - Bees

                                                      No. 6 - Management of Parks

                                                      No. 7 - Keeping of Dogs

                                                      No. 8 - Flammable Undergrowth

                                                      No. 9 - Animals

                                           City of Payneham -

                                                      No. 1  -  Moveable Signs on Streets and Roads

                              District Council of Port Broughton -

                                          No. 1 - Permits and Penalties

                                          No. 2 - Council Land

                                          No. 3 - Moveable Signs

                                          No. 4 - Fire Prevention

                                          No. 5 - Animals and Birds

                                          No. 6 - Bees

                              District Council of Stirling -

                                          No. 1 - Permits and Penalties

 

                  By the Minister for Primary Industries (Hon. D.S. Baker) -

                              South Australian Meat Corporation - Report, 1993-94

                              South Australian Timber Corporation - Report, 1993-94

 

                  By the Minister for Emergency Services (Hon. W.A. Matthew) -

                              Summary Offences Act 1953 -

                                          Dangerous Area Declarations, 1 July to 30 September 1994

                                          Road Block Establishment Authorisations, 1 July to 30 September 1994.

 

8         Questions

                  Questions without notice were asked.

                 

9         Grievance debate

                  The Speaker proposed - That the House note grievances.

                  Debate ensued.

                  Question put and passed.

 

10       Message from the Legislative Council

                  The following Message from the Legislative Council was received and read:

 

            South Australian Water Corporation Bill                                                                                              Message No. 56

                  MR SPEAKER - The Legislative Council does not insist on its Amendment No.1 in the South Australian Water Corporation Bill to which the House of Assembly has disagreed, and has agreed to the alternative amendment made by the House of Assembly without any amendment. the Bill is returned herewith.

                  Legislative Council, 24 November 1994                                                                                               H.P.K. Dunn, PRESIDENT

 

11        Land Agents Bill, Land Valuers Bill and Conveyancers Bill - Conference

                  Ordered - That the recommendations of the Conference on these Bills be now taken into consideration.

                  Ordered - That the Speaker do now leave the Chair and the House resolve itself into a Committee of the whole for the consideration of the recommendations of the Conference.

 

                                                                                      In Committee

                  Resolved - That the recommendations of the Conference be agreed to.

 

                                                                                                                                  ____________

 

                  The House having resumed:

                  Hon H. Allison reported that the Committee had considered the recommendations of the Conference and had  agreed to the same.

 

12       State Lotteries (Scratch Tickets) Amendment Bill

                  Order of the Day read for the consideration of the amendments of the Legislative Council in this

                              Bill.

                 

                                                                                      In Committee

                  Resolved - That amendment No.1 be agreed to.

                  Resolved - That amendments Nos 2 to 5 be disagreed to.

                  Resolved - That amendment No. 6 be agreed to.

 

                                                                                                                                  ____________

 

                  The House having resumed:

                  Hon H. Allison reported that the Committee had considered the amendments referred to it and had agreed to amendments Nos 1 and 6 and disagreed to amendments Nos 2 to 5.

 

13       Postponement of business

                  Ordered - That Orders of the Day (Government Business) Nos 2 and 3 be postponed and taken into consideration after Order of the Day (Government Business) No. 4.

 

14       Wheat Marketing (Barley and Oats) Amendment Bill          

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

 

                  Bill read a second time.

                 

 

                                                                                      In Committee

                                                                                                Clauses Nos 1 and 2 agreed to.

                                                                                                New clause No. 3 inserted.

                                                                                                Title agreed to.

                                                                                                                                  ____________

 

                  The House having resumed:

                  Hon. H. Allison reported that the Committee had considered the Bill referred to it and had agreed to the same with an amendment.

 

                  Bill read a third time and passed.

 

15       Public Finance and Audit (Local Government Controlling Authorities) Amendment Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

 

                  Bill read a second time.

                  By leave, House proceeded to the third reading.

 

                  Bill read a third time and passed.

 

16       Conference - Correctional Services (Private Management Agreements) Amendment Bill

                  The Minister for Correctional Services reported as follows:

                              I have to report that the Managers have been at the Conference on the Correctional Services (Private Management Agreements) Amendment Bill, which was managed on the part of the Legislative Council by the Attorney-General the Hon. K.T. Griffin, Hon. J.C. Irwin, Hon. S.M. Kanck, Hon. T.G. Roberts and Hon. G. Weatherill and we there delivered the Bill together with the Resolution adopted by this House and thereupon the Managers for the two Houses conferred together but no agreement was reached.

 

17        Postponement of business

                  Ordered - That Orders of the Day (Government Business) Nos 3, 5 and 6 be postponed and taken into consideration after Order of the Day (Government Business) No. 7.

 

18       Local Government (1995 Elections) Amendment Bill            

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

                 


                  Bill read a second time.

                  By leave, House proceeded to the third reading.

 

                  Bill read a third time and passed.

 

19       National Environment Protection Council (South Australia) Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

                 

                  Bill read a second time.

                 

                                                                                      In Committee

                                                                                                Clauses Nos 1 to 16 agreed to.

                                                                                                Clause No. 16 amended and agreed to.

                                                                                                Clauses Nos 17 to 19 agreed to.

                                                                                                Clause No. 20 amended and agreed to.

                                                                                                Clause No. 21 amended and agreed to.

                                                                                                Clauses Nos 22 to 63 agreed to.

                                                                                                Schedules 1 and 2 agreed to.

                                                                                                Preamble agreed to.

                                                                                                Title agreed to.

                                                                                                                                    ___________

 

                  The House having resumed:

                  Hon. H. Allison reported that the Committee had considered the Bill referred to it and had agreed to the same with amendments.

 

                  Bill read a third time and passed.

 

20       Message from the Legislative Council

                  The following Message from the Legislative Council was received and read:

 

            Stamp Duties (Miscellaneous) Amendment Bill                                                                           Message No. 57

                  MR SPEAKER - The Legislative Council has agreed to the Bill returned herewith, titled an Act to amend the Stamp Duties Act 1923, with the suggested amendments indicated  by the annexed Schedule, which amendments the Legislative Council requests the House of Assembly to make to the said Bill.

                  Legislative Council, 29 November 1994                                                                                               H.P.K. Dunn, PRESIDENT

 

                                                             Schedule of the amendments suggested by the Legislative Council

                  No. 1             Page 1 - After line 11 insert new clause as follows:-

                            1A 'Amendment of s.42B - Stamp duty on application for motor vehicle registration Section 42B of the principal Act is amended -

                                          (a)     by striking out from subsection (1a)(b)  “, subject to subsection (1b),”;

                                          (b)     by striking out subsections (1b) and (1c);

                                          (c)     by striking out from subsection (2) “or (1b)”;

                                          (d)     by striking out from subsection (7) “section” and substituting “Act”.’

                  No. 2            Page 2 - After line 12 insert new clause as follows:-

                            3A. ‘Substitution of s.71CB Section 71CB of the principal Act is repealed and the following section is substituted:

                            71CB. Exemption from duty in respect of certain transfers between spouses or former spouses

                                          (1)      In this section -

                                                      “matrimonial home” means -

                                                      (a)     in relation to spouses - their principal place of residence of which both or either of them is owner;

                                                      (b)     in relation to former spouses - their last principal place of residence of which both or either of them was owner,

                                                      but does not include premises that form part of industrial or commercial premises;

                                                                  “spouses” includes persons who have cohabited continuously as de facto  husband and wife for at least five years.

                                          (2)     Subject to subsection (3), an instrument of which the sole effect is to transfer -

                                                      (a)     an interest in the matrimonial home; or

                                                      (b)     registration of a motor vehicle,

                                                                  between parties who are spouses or former spouses is exempt from stamp duty.

                                          (3)     An instrument described in subsection (2) between parties who are former spouses is only exempt from stamp duty if the Commissioner is satisfied that the instrument has been executed as a  result of the irretrievable breakdown of the parties’ marriage or de facto  relationship.

                                          (4)     Where an instrument was not exempt from stamp duty under this section by reason only that the Commissioner was not satisfied that the instrument had been executed as a result of the irretrievable breakdown of the parties’ marriage or de facto  relationship, the party by whom stamp duty was paid on the instrument is entitled to a refund of the duty if the Commissioner is subsequently satisfied that the instrument had been executed as a result of the irretrievable breakdown of the parties’ marriage or de facto  relationship.

                                          (5)     The Commissioner may require a party to an instrument in respect of which an exemption is claimed under this section to provide such evidence (verified, if the Commissioner so requires, by statutory declaration) as the Commissioner may require for the purpose of determining whether the instrument is exempt from duty under this section.

                                          (6)     This section applies in relation to instruments executed after its commencemnet.'

                  No. 3            Page 4 - After line 27 insert new clause as follows:-

                            6A. ‘Amendment of s.93 - Acquisitions to which this Part does not apply

                                   Section 93 of the principal Act is amended by striking out from subsection (1)(d)  “59B” and substituting “90V”.’

                  No. 4            Page 5 - After line 9 insert new clause as follows:-

                            7A. ‘Amendment of schedule 2

                                          Schedule 2 of the principal Act is amended by inserting after item 21 of the clause headed “GENERAL EXEMPTIONS FROM ALL STAMP DUTIES” the following item:

                                          22.    Conveyance or transfer of American Depositary Shares or of American Depositary Receipts that relate to American Depositary Shares, that causes or results in a change in the beneficial ownership of an estate or interest in marketable securities of a South Australian registered company.’

                                                                                                                                                J.M. Davis, CLERK OF THE LEGISLATIVE COUNCIL

 

                  Ordered - That the Message be taken into consideration forthwith.

 

                                                                                      In Committee

                  Resolved -  That the suggested amendments be agreed to.

 

                                                                                                                                  ____________

 

                  The House having resumed:

                  Hon. H. Allison reported that the Committee had considered the suggested amendments referred to it, had resolved to agree to the same without amendment and had amended the Bill accordingly.

 


21       Road Traffic (Miscellaneous) Amendment Bill     

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

 

                  Bill read a second time.

                 

                                                                                      In Committee

                                                                                                Clauses Nos 1 to 11 agreed to.

                                                                                                Title agreed to.

                                                                                                                                  ____________

 

                  The House having resumed:

                  Hon. H. Allison reported that the Committee had considered the Bill referred to it and had agreed to the same without amendment.

 

                  Bill read a third time and passed.

 

22       Electoral (Duty to Vote) Amendment Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

 

23       Extension of time for adjournment

                  The Deputy Premier moved - That the time for moving the adjournment of the House be extended beyond 10.00 p.m.

                  Question put and passed.

 

24       Electoral (Duty to Vote) Amendment Bill

                  Debate (interrupted by the foregoing motion) resumed.

                  Question put.


                  House divided (No. 1):

 

                                          Ayes, 29.

 

                              Hon. H. Allison

                              Mr Andrew

                              Hon. M.H. Armitage

                              Mr Ashenden

                              Mr Bass

                              Mr Becker

                              Mr Brindal

                              Mr Brokenshire

                              Mr Caudell

                              Mr Condous

                              Mr Cummins

                              Mr Evans

                              Mrs Greig

                              Hon. G.A. Ingerson

                              Mrs Kotz

                              Mr Leggett

                              Mr Lewis

                              Hon. W.A. Matthew

                              Mr Meier

                              Hon. J.K.G. Oswald

                              Ms Penfold

                              Mrs Rosenberg

                              Mr Rossi

                              Mr Scalzi

                              Hon. R.B. Such

                              Mr Venning

                              Mr Wade

                              Hon. D.C. Wotton

                              Hon. S.J. Baker (Teller)

                              Noes, 11.

 

Mr Atkinson

Hon. F.T. Blevins

Mr De Laine

Mr Foley

Mrs Geraghty

Ms Hurley

Mr Quirke

Hon. M.D. Rann

Ms Stevens

Ms White

Mr Clarke (Teller)

 

 

 

                  So it was resolved in the affirmative.

 

                  Bill read a second time.

                  By leave, House proceeded to the third reading.

 

                  Bill read a third time and passed.

 

25       Parliamentary Remuneration (Salary Rates Freeze) Amendment Bill      

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

 

                  Bill read a second time.

                  By leave, House proceeded to the third reading.

 

                  Bill read a third time and passed.

 


26       Messages from the Legislative Council

                  The following Messages from the Legislative Council were received and read:

 

            Native Title (South Australia) Bill                                                                                                                    Message No. 58

                  MR SPEAKER - The Legislative Council has agreed to the Bill returned herewith, titled an Act relating to native title; and amending the Acts Interpretation Act 1915, with the amendments indicated by the annexed Schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly.

                  Legislative Council, 29 November 1994                                                                                               H.P.K. Dunn, PRESIDENT

 

                                                                    Schedule of the amendments made by the Legislative Council

                  No. 1             Page 2 (clause 3) - After line 29 insert the following:-

                                          “(but does not include a question arising in criminal proceedings)”.

                  No. 2            Page 2 (clause 3) - After line 34 insert new definition as follows:-

                                          ‘“registered representative” of persons who are registered under the law of the Commonwealth or the State as claimants to native title in the land means -

                                          (a)     the person registered under the Native Title Act 1993 (Cwth) in the Register of Native Title Claims as the registered native title claimant; or

                                          (b)     the person registered in the State Native Title Register as the registered representative of the claimants;’

                  No. 3            Page 3 (clause 3) - After line 21 insert new definition as follows:-

                                          ‘“Commonwealth Act” means the Native Title Act 1993  (Cwth);’.

                  No. 4            Page 3, lines 26 to 29 (clause 3) - Leave out definition of “Court” and insert new definition as follows:-

                                          ‘“Court” means the Supreme Court or the ERD Court;’.

                  No. 5            Page 4 (clause 3) - After line 4 insert new definition as follows:-

                                          ‘“proceedings” does not include criminal proceedings;’.

                  No. 6            Page 4 (clause 3) - After line 7 insert new subclause as follows:-

                                          “(4)      An explanatory note to a provision of this Act forms part of the provision to which it relates.”

                  No. 7             Page 4, line 18 (clause 4) - Leave out paragraph (d)  and insert new paragraph as follows:-

                                          “(d)   the rights and interests have not been extinguished or have revived.1

                                         

                                                                                    1           If section 47 of the Native Title Act 1993 (Cwth) is a valid enactment of the Commonwealth Parliament, it is possible that native title may revive in certain  circumstances under that section.”

                  No. 8            Page 4, lines 31 to 33 and page 5, lines 1 to 3 (clause 4) - Leave out subclause (5).

                  No. 9            Page 6, lines 20 to 24 (clause 6) - Leave out subclause (1) and insert new subclause as follows:-

                                          “(1)       The Supreme Court may, and other courts of the State must, refer proceedings involving a native title question to the ERD Court for hearing and determination.”

                  No. 10         Page 8, lines 27 and 28 (clause 16) - Leave out paragraph (a)  and insert new paragraph as follows:-

                                          “(a)   that an interested person may apply to the Court, within two months after the notice is given, to be joined as a party to the proceedings; and”.

                  No. 11          Page 8 (clause 16) - After line 31 insert new subclause as follows:-

                                          “(3)  The following are interested persons -

                                                      (a)     the registered representative of claimants to, or holders of, native title in the land; and

                                                      (b)     a person whose interests would be affected by the existence of native title in the land (including a person who proposes to carry out mining operations on the land); and

                                                      (c)     a representative Aboriginal body; and

                                                      (d)     the State Minister; and

                                                      (e)     the Commonwealth Minister.”


                  No. 12         Page 10, line 7 (clause 18) - Leave out “reasonably ascertainable by the applicant” and insert “known to the applicant after reasonable inquiry”.

                  No. 13         Page 10, lines 19 to 23 (clause 18) - Leave out subclause (5) and insert new subclause as follows:-

                                          “(5)   If, in the Registrar’s opinion -

                                                                  (a)     the application is frivolous or vexatious; or

                                                                  (b)     the application cannot be made out for obvious reasons,

                                                      the Registrar must refer the application to a Judge of the ERD Court, or at the direction of the Judge to a Master of the ERD Court, and, if the Judge or Master agrees with the Registrar’s assessment of the application, the Registrar must reject the application but, if the Judge or Master does not agree, the Registrar must register the claim.”

                  No. 14         Page 11, line 13 (clause 20) - Leave out “reasonably ascertainable by the applicant” and insert “known to the applicant after reasonable inquiry”.

                  No. 15         Page 11 - After line 26 insert new clauses as follow:-

                            20A “Concurrent proceedings

                                          (1)      If a non-claimant application is made under this Act, and there is a concurrent claimant application under the Commonwealth Act (accepted before or after the non-claimant application is made) -

                                                      (a)     the non-claimant application under this Act is, to the extent that it relates to the same land as the claimant application, stayed while proceedings based on the claimant application continue; and

                                                      (b)     to the extent that the non-claimant application relates to land that becomes subject to a native title declaration under the Commonwealth Act, is permanently stayed.

                                                      Explanatory note—

                                                      A claimant application is an application for a declaration that land is subject to native title made on behalf of the persons who claim to be entitled to the native title by the registered representative of those persons.

                                                      A non-claimant application is any other application for a native title declaration.

                                          (2)     However if a native title declaration under the Commonwealth Act is varied or revoked, the application revives to the extent that it relates to land that ceases to be subject to the declaration.

                            20B "Cross-vesting scheme

                                          (1)      For the purpose of avoiding multiplicity of proceedings, the State Minister and the Commonwealth Minister may enter into an arrangement (a “cross-vesting scheme”) providing reciprocal powers for the transfer of proceedings involving native title questions between the Court and Commonwealth authorities with power to adjudicate on native title questions.

                                          (2)     If proceedings are transferred to a Commonwealth authority under a cross-vesting scheme, the Commonwealth authority has, subject to the conditions of the scheme, jurisdiction to decide native title questions and also other questions arising in the proceedings.”

                  No. 16         Page 11 (clause 21) - After line 30 insert new subclause as follows:-

                                          “(1a)            The following are interested persons -

                                                                  (a)     the registered representative of claimants to native title in the land; and

                                                                  (b)     a person whose interests would be affected by the existence of native title in the land (including a person who proposes to carry out mining operations on the land); and

                                                                  (c)     a representative Aboriginal body; and

                                                                  (d)     the State Minister; and

                                                                  (e)     the Commonwealth Minister; and

                                                                  (f)      any other person who, in the Court’s opinion, may be in a position to contribute to the proper resolution of the questions at issue.”

                  No. 17          Page 11, lines 31 to 35 and page 12, lines 1 and 2 - Leave out subclause (2) and insert new subclause as follows:-


                                          “(2)   If, after hearing the evidence and submissions, the Court is satisfied that native title exists in the land or a particular part of the land, the Court must, on the application of the representative of the claimants to native title in the land -

                                                                  (a)     define the land in which the native title exists; and

                                                                  (b)     state who holds the native title; and

                                                                  (c)     define the nature and extent of the rights and interests conferred by the native title and, in particular -

                                                                                 (i)         state whether the native title confers rights to the possession, occupation, use and enjoyment of the land to the exclusion of all others; and

                                                                                 (ii)       state the rights and interests of the holders of the native title that the Court considers to be of importance; and

                                                                  (d)        state the nature and extent of other interests in the land that may affect the native title or rights and interests deriving from the native title.”

                  No. 18         Page 12, lines 21 and 22 (clause 22) - Leave out subclause (2) and insert new subclause as follows:-

                                          “(2)  A body corporate -

                                                      (a)     is not eligible for nomination as the registered representative of the holders of native title in land unless it complies with the principles of eligibility prescribed by regulation; but

                                                      (b)     if it does comply with the principles of eligibility - may be the registered representative of different groups of Aboriginal people who hold different rights and interests in the same land or who hold rights and interests in different land.”

                  No. 19         Page 13, lines 3 and 4 (clause 22) - Leave out “in whom native title is vested” and insert “who are recognised at common law as the holders of native title in land”.

                  No. 20        Page 14, lines 4 to 7 (clause 26) - Leave out subclause (1) and insert new subclause as follows:-

                                          “(1)    If native title is registered under the law of the Commonwealth or the State, a notice or other document is validly served on the holders of the native title if the notice or other document is given personally or by post to -

                                                                  (a)        their registered representative; and

                                                                  (b)        the relevant representative Aboriginal body for the land.”

                  No. 21         Page 14 - After line 17 insert new clause as follows:-

                            26A “Service on native title claimants  If a claim to native title is registered under the law of the Commonwealth or the State, a notice or other document is validly served on the claimants to that native title if the notice or other document is given personally or by post to -

                                          (a)     their registered representative; and

                                          (b)     the relevant representative Aboriginal body for the land.”

                  No. 22        Page 14, line 23 (clause 27) - Insert “registered representatives of” after “all”.

                  No. 23        Page 18, lines 15 to 21 (clause 36) - Leave out footnote 1 and insert new subclause as follows:-

                                          “(5)  Nothing in this section -

                                                      (a)     extinguishes or impairs native title; or

                                                      (b)     affects land or an interest in land held by Aboriginal peoples under a law that confers benefits only on Aboriginal peoples.”

                                                                                                                                                J.M. Davis, CLERK OF THE LEGISLATIVE COUNCIL

 

                  Ordered - That consideration of the amendments be an Order of the Day for tomorrow

 

            Environment, Resources and Development Court (Native Title)                            Message No. 59

                    Amendment Bill                                                                                                                                                                                                                                       

                  MR SPEAKER - The Legislative Council has agreed to the Bill returned herewith, titled an Act to amend the Environment, Resources and Development Court Act 1993, without any amendment.                             

                  Legislative Council, 29 November 1994                                                                                               H.P.K. Dunn, PRESIDENT

                             

            Land Acquisition (Native Title) Amendment Bill                                                                          Message No. 60

                  MR SPEAKER - the Legislative Council has agreed to the Bill returned herewith, titled an Act to amend the Land Acquisition Act 1969, with the amendments indicated by the annexed Schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly. 

                  Legislative Council, 29 November 1994                                                                                               H.P.K. Dunn, PRESIDENT

 

                                                                    Schedule of the amendments made by the Legislative Council

                  No. 1             Page 2 (clause 5) - After line 21 insert new paragraph as follows:-

                                          “(f)    by inserting after its present contents (now to be designated as subsection (1)) the following:

                                                      (2)     An explanatory note to a provision of this Act forms part of the provision to which it relates.”

                  No. 2            Page 3, lines 8 to 13 (clause 7) - Leave out subsection (2) and insert new subsection as follows:-

                                          “(2)   If the Authority proposes to acquire native title in land, the Authority must -

                                                                  (a)     if there is a registered representative of the native title holders - give notice of intention to acquire the land to the registered representative and the relevant representative Aboriginal body; or

                                                                  (b)     if there is no registered representative of the native title holders - give notice of intention to acquire the land to all persons who hold, or may hold, native title in the land1 and give a copy of the notice to the Registrar of the ERD Court.

                                                                                    1 For method of service see Native Title (South Australia) Act 1994.”

                  No. 3            Page 3 (clause 8) - After line 28 insert new subsection as follows:-

                                          “(1a)            For the purposes of this section -

                                                                  (a)     the registered representative of claimants to, or holders of, native title in land is taken to have an interest in that land; and

                                                                  (b)     the relevant representative Aboriginal body is taken to have an interest in native title land.”

                  No. 4            Page 3, lines 32 to 34 (clause 8) - Leave out footnote 1.

                  No. 5            Page 4 (clause 9) - After line 12 insert new subsection as follows:-

                                          “(1a)            For the purposes of this section -

                                                                  (a)     the registered representative of claimants to, or holders of, native title in land is taken to have an interest in that land; and

                                                                  (b)     the relevant representative Aboriginal body is taken to have an interest in native title land.”

                  No. 6            Page 4, lines 28 to 30 (clause 9) - Leave out footnote 1.

                  No. 7             Page 5, lines 24 and 25 (clause 11) - Leave out “from when notice of intention to acquire land was given” and insert “from the last occasion on which notice of intention to acquire was given to a person”.

                  No. 8            Page 5, lines 27 and 28 (clause 11) - Leave out footnote 1.

                  No. 9            Page 5 (clause 11) - After line 28 insert new subsection as follows:-

                                          “(1a)            If the notice of acquisition relates to native title land, the notice of acquisition must contain an explanation of what may happen if no claim for compensation is made by a person claiming native title in the land within two months after the date of publication of the notice of acquisition.1

                                                            1 See section 23D.”

                  No. 10         Page 6, lines 2 to 9 (clause 11) - Leave out subsection (3a) and insert new subsection as follows:-

                                          “(3a)           However, the acquisition of land under this section is subject to the non-extinguishment principle so that the acquisition does not, in itself, extinguish native title in the land but native title is extinguished when the Authority, in giving effect to the purpose of the acquisition of the land, exercises rights obtained by the acquisition in a way that is wholly inconsistent with the continued existence, enjoyment or exercise of rights deriving from the native title.

                                          Explanatory note—

                                          The non-extinguishment principle is the principle set out in section 238 of the Native Title Act 1993 (Cwth).”

                  No. 11          Page 7, lines 6 to 9 (clause 14) - Leave out section 18 and insert new section as follows:-

                            18. “Application of Division  This Division applies if an Authority proposes to acquire native title land for the purpose of conferring rights or interests on a person other than the Crown.”

                  No. 12         Page 7 (clause 14) - After line 13 insert the following:-

                                          “Explanatory note—

                                          The native title parties are the persons who are, at the end of the period of two months from when notice is given under subsection (1), registered under the law of the State or the Commonwealth as holders of, or claimants to, native title in the land.  The negotiations are to be conducted with the registered representatives of those persons.”

                  No. 13         Page 7, lines 19 to 21 (clause 14) - Leave out footnote 1.

                  No. 14         Page 7, lines 26 to 28 (clause 14) - Leave out subsection (2) and insert new subsection as follows:-

                                          “(2)   On an application under this section, the ERD Court may determine whether the Authority may acquire the land and, if so, the conditions on which the acquisition is to proceed (but compensation is not to be determined at this stage).1

                                                                                    1 Compensation is determined under Division 2 of Part 4.”

                  No. 15         Page 11 (clause 15) - After line 2 insert new paragraph as follows:-

                                          “(c)   by inserting after its present contents (now to be designated as subsection (1)) the following:

                                                      (2)     If native title land is acquired from native title holders, the native title holders must be compensated for the loss, diminution, impairment or other effect on the native title of the acquisition or the consequent use of the land for the purpose for which it was acquired.1

                                                                                    1 Compare section 51(1) of the Native Title Act 1993 (Cwth).”

                  No. 16         Page 12, lines 23 to 30 (clause 20) - Leave out subsections (1) and (2) and insert new subsections as follow:-

                                          “(1)    Before the Authority, or a person authorised by the Authority, enters native title land to exercise a power conferred by this Part, the Authority must give written notice of the intended entry and the nature of the work to be carried out on the land to all who hold or may hold native title in the land.1

                                          (1a)  The notice must be given -

                                                                  (a)     if the intended exercise of powers involves the removal of minerals from the land, or substantial interference with the land or its use or enjoyment - at least two months before entry;

                                                                  (b)     in other cases - at least seven days before entry.

                                          (2)     If the intended exercise of powers will involve the removal of minerals from the land, or substantial interference with the land or its use or enjoyment, the Authority must negotiate in good faith with the native title parties in an attempt to reach agreement on the conditions on which the Authority may enter and use the land.

                                          Explanatory note—

                                          The native title parties are the persons who are, at the end of the period of two months from when notice is given under subsection (1), registered under the law of the State or the Commonwealth as holders of, or claimants to, native title in the land.  The negotiations are to be conducted with the registered representatives of those persons.”

                  No. 17          Page 13, lines 7 to 9 (clause 20) - Leave out footnote 2.

                  No. 18         Page 13, lines 31 to 34 (clause 25) - Leave out the  clause.

                                                                                                                                                J.M. Davis, CLERK OF THE LEGISLATIVE COUNCIL

 

                  Ordered - That consideration of the amendments be an Order of the Day for tomorrow.


            Land Agents Bill, Land Valuers Bill and Conveyancers Bill                                         Message No. 61

                  MR SPEAKER - The Legislative Council having considered the recommendations from the Conference on the Land Agents Bill, the Conveyancers Bill and the Land Valuers Bill has agreed thereto.

                  Legislative Council, 29 November 1994                       H.P.K. Dunn, PRESIDENT

 

27       Adjournment

                  House adjourned at 11.39 p.m. until tomorrow at 2.00 p.m.

 

                                                                                                                                  ____________

 

 

                                                              MOTIONS OF WHICH NOTICE WAS GIVEN

 

 

For Wednesday 30 November 1994  

            Notices of Motion:  Government Business -

 

The Treasurer to move - That he have leave to introduce a Bill for an Act to amend the State                      Government Insurance Commission Act 1992.

 

The Treasurer to move - That he have leave to introduce a Bill for an Act to amend the Lottery and Gaming Act 1936.

 

The Treasurer to move - That he have leave to introduce a Bill for an Act to amend the Government Financing Authority Act 1982.

 

The Minister for Primary Industries to move - That he have leave to introduce a Bill for an Act to provide for the protection of vineyards from disease and to foster the development of the grape industry in South Australia.

 

 

For Thursday 1 December 1994

            Notices of Motion: Other Motions-

 

Mr Lewis to move - That this House commends Rotary International for its research into community attitudes to unemployment and for publishing the document containing a precis of public thinking on this issue entitled The Employment Generator - Creating Permanent Employment for our People and that a copy of this resolution and contribution of Honourable Members recorded in Hansard be forwarded to Rotary International, District 23; and that a Message be sent to the Legislative Council requesting its concurrence thereto.

 

Mr Venning to move - That this House recognises the 150 Year Celebrations of the district of Kapunda and Australia's oldest copper mine and its significance to the early economy of South Australia and congratulates the community on achieving this milestone and for celebrating in such a memorable way.

                                                                                                                                  ____________

 

                  Present during the day - All Members except Hon J.W. Olsen.

 

 

                                                                                                                                                                                                                                                G.M. Gunn

                                                                                                                                                                                                                                                SPEAKER

 

G.D. Mitchell

CLERK OF THE HOUSE OF ASSEMBLY