[SOUTH AUSTRALIA]

No. 41

 

 

MINUTES OF THE PROCEEDINGS

 

OF THE

 

 

LEGISLATIVE COUNCIL

_______

 

 

 

WEDNESDAY  19  AUGUST  1998

 

 

 

   1.

Council met pursuant to adjournment.  The President (The Hon. J. C. Irwin) took the Chair.

                 The President read prayers.

 

Meeting of

Council.

 

   2.

The Hon. A. J. Redford brought up the Twentienth Report, 1997-98 of the Legislative Review Committee.

 

Legislative

Review

Committee -

Twentieth

Report, 1997-98.

 

   3.

The Minister for Transport and Urban Planning (The Hon. D. V. Laidlaw), without notice, moved - That the Standing Orders be so far suspended as to enable Question Time to be extended to enable her to give a reply to a question asked by the Hon. C. Zollo.

                 Question put and passed, without a dissentient voice, there being present an absolute majority of the whole number of Members of the Council.

 

Suspension of Standing 

Orders.

   4.

In accordance with Sessional Standing Order, the President called on Members to make Statements on Matters of Interest.

 

Statements

on Matters

of Interest.

 

   5.

Ordered - separately - That Orders of the Day (Private Business) No. 1 and No. 2 be Orders of the Day for Wednesday next.

 

Postponement

of Business.

 

   6.

The Hon. M. J. Elliott, pursuant to notice, moved - That this Council calls on the Environment, Resources and Development Committee to be required to investigate and report on Rail Links with the Eastern States to ascertain the best configuration for the Future Development of South Australia.

                 On motion of the Minister for Transport and Urban Planning, the debate was adjourned until Wednesday next.

 

Rail Links with Eastern States - Environment, Resources and Development Committee to

inquire into -

Motion re.

 

   7.

Ordered - That Order of the Day (Private Business) No. 4 be discharged.

 

Business

Discharged.

 

   8.

Ordered - That Order of the Day (Private Business) No. 5 be an Order of the Day for Wednesday next.

 

Postponement

of Business.

 

   9.

On the Order of the Day being read for the adjourned debate on the question - That the Workers Rehabilitation and Compensation (Mental Incapacity) Amendment Bill be now read a second time:

                 Debate resumed.

                 Question put.

           Council divided:

Workers Rehabilitation and Compensation (Mental

Incapacity)

Amendment Bill.

 

 

Ayes, 12.

The Hon. T. G. Cameron

The Hon. T. Crothers

The Hon. M. J. Elliott

The Hon. I. Gilfillan

The Hon. P. Holloway

The Hon. S. M. Kanck

The Hon. C. A. Pickles

The Hon. T. G. Roberts

The Hon. G. Weatherill

The Hon. N. Xenophon

The Hon. C. Zollo

The Hon. R. R. Roberts (Teller)

  Noes, 9.

The Hon. L. H. Davis

The Hon. J.S.L. Dawkins

The Hon. K. T. Griffin

The Hon. D. V. Laidlaw

The Hon. R. D. Lawson

The Hon. R. I. Lucas

The Hon. C. V. Schaefer

The Hon. J. F. Stefani

The Hon. A. J. Redford (Teller)

 

 

        So it was resolved in the affirmative.

                 Bill read a second time.

                 The President then left the Chair, and the Council resolved itself into a Committee of the Whole for the consideration of the Bill.

 

 

 

In the Committee

 

                          Clauses No. 1 to No. 3 agreed to.

                          Title agreed to.

_____________________

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same without amendment; whereupon the Council adopted such report.

                 The Hon. R. R. Roberts, pursuant to contingent notice, moved - That the Standing Orders be so far suspended as to enable the Bill to pass through its remaining stages without delay.

                 Question put and passed.

                 Bill read a third time.

                 Resolved - That this Bill do now pass.

 

 

10.

Ordered - separately - That Orders of the Day (Private Business) No. 7 and No. 8 be Orders of the Day for Wednesday next.

 

Postponement

of Business.

 

11.

On the Order of the Day being read for the adjourned debate on the motion of the Hon.
M. J. Elliott - That this Council -

         I.      Opposes the Federal Government’s signing of the Multilateral Agreement on Investment (MAI) until this Parliament and the People of South Australia are fully cognizant of the implications the MAI will have on policies under State jurisdiction; and

        II.      Urges the State Government not to support the MAI if it is found that the governance of
this State is severely impaired:

         Debate resumed.

                 On motion of the Hon. C. A. Pickles, the debate was adjourned until Wednesday next.

 

Multilateral Agreement on Investment -

Motion re.

12.

Ordered - separately - That Orders of the Day (Private Business) No. 10 to No. 12 be Orders of the Day for Wednesday next.

 

Postponement

of Business.

 

13.

On the Order of the Day being read for the adjourned debate on the question - That the Prostitution Bill be now read a second time:

                 Debate resumed.

                 On motion of the Hon. C. Zollo, the debate was adjourned until Wednesday next.

 

Prostitution

Bill.

 

14.

Ordered - separately - That Orders of the Day (Private Business) No. 14 to No. 17 be Orders of the Day for Wednesday next.

 

Postponement

of Business.

 

15.

On the Order of the Day being read for the adjourned debate on the question - That Dentists (Dental Prosthetists) Amendment Bill be now read a second time:

                 Debate resumed.

                 On motion of the Hon. C. V. Schaefer, the debate was adjourned until Wednesday next.

 

Dentists (Dental Prosthetists)

Amendment Bill.

 

16.

Ordered - That Order of the Day (Private Business) No. 19 be an Order of the Day for Wednesday next.

 

Postponement

of Business.

 

17.

The Council, according to order, resolved itself into a Committee of the Whole for the consideration of the Freedom of Information (Public Opinion Polls) Amendment Bill.

 

In the Committee

 

                          Clause No. 1 agreed to.

                          Clause No. 2 read.

                          To report progress and ask leave to sit again.

_____________________

 

                 The President resumed the Chair and reported progress and obtained for the Committee leave to sit again on motion.

 

Freedom of Information

(Public

Opinion Polls)

Amendment Bill.

18.

At six o’clock the sitting was suspended until the ringing of the bells.

                 At fifteen minutes to eight o’clock the sitting was resumed.

 

Suspension and

Resumption of

Sitting.

 

19.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Freedom of Information (Public Opinion Polls) Amendment Bill.

 

In the Committee

 

                          Clause No. 2 further considered and agreed to.

                          Clause No. 3 agreed to.

                          Title agreed to.

_____________________

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same without amendment; whereupon the Council adopted such report.

                 The Treasurer, pursuant to contingent notice, moved - That the Standing Orders be so far suspended as to enable the Bill to pass through its remaining stages without delay.

                 Question put and passed.

                 The Hon. P. Holloway moved - That this Bill be now read a third time.

                 Debate ensued.

                 Question put and passed.

                 Bill read a third time.

                 Resolved - That this Bill do now pass.

 

Freedom of Information

(Public

Opinion Polls)

Amendment Bill.

20.

On the Order of the Day being read for the adjourned debate on the question - That the Criminal Law (Sentencing) (Victim Impact Statements) Amendment Bill be now read a second time:

                 Debate resumed.

                 On motion of the Attorney-General, the debate was adjourned until Wednesday next.

 

Criminal Law (Sentencing)

(Victim Impact Statements) Amendment Bill.

 

21.

The Hon. C. V. Schaefer, according to order, moved - That the Education (Government School Closures and Amalgamations) Amendment Bill be now read a second time.

                 On motion of the Hon. C. Zollo, the debate was adjourned until Wednesday next.

 

Education (Government

School Closures

and Amalgamations) Amendment Bill.

 

22.

The Minister for Transport and Urban Planning, pursuant to notice, moved - That she have leave to introduce a Bill for an Act to amend the Non-Metropolitan Railways (Transfer) Act 1997.

                 Question put and passed.

                 Bill introduced and read a first time.

                 The Minister for Transport and Urban Planning then moved - That this Bill be now read a second time.

                 On motion of the Hon. T. G. Roberts, the debate was adjourned until next day of sitting.

 

Non-Metropolitan Railways

(Transfer)

(National Rail) Amendment Bill.

 

23.

The Attorney-General, according to order, moved - That the Primary Industry Funding Schemes Bill be now read a second time.

                 On motion of the Hon. T. G. Roberts, the debate was adjourned until next day of sitting.

 

Primary

Industry

Funding Schemes

Bill.

 

24.

Ordered - That Orders of the Day (Government Business) No. 2 to No. 5 be Orders of the Day for next day of sitting.

 

Postponement

of Business.

 

25.

On the Order of the Day being read for the adjourned debate on the question - That the Electricity Corporations (Restructuring and Disposal) Bill be now read a second time:

                 Debate resumed.

                 On motion of the Hon. J. F. Stefani, the debate was adjourned until next day of sitting.

 

Electricity Corporations (Restructuring

and Disposal) Bill.

 

26.

Ordered - That Order of the Day (Government Business) No. 7 be an Order of the Day for next day of sitting.

 

Postponement

of Business.

 

27.

On the Order of the Day being read for the adjourned debate on the question - That the City of Adelaide Bill be now read a second time:

                 Debate resumed.

                 On motion of the Hon. L. H. Davis, the debate was adjourned until next day of sitting.

 

City of Adelaide

Bill.

 

28.

Ordered - That Orders of the Day (Government Business) No. 9 and No. 10 be Orders of the Day for next day of sitting.

 

Postponement

of Business.

 

29.

On the Order of the Day being read for the adjourned debate on the question - That the Tobacco Products Regulation (Dissolution of Sports, Promotion, Cultural and Health Advancement Trust) Amendment Bill be now read a second time:

                 Debate resumed.

                 On motion of the Hon. T. Crothers, the debate was adjourned until next day of sitting.

 

Tobacco Products Regulation

(Dissolution of

Sports, Promotion,

Cultural and Health Advancement Trust)

Amendment Bill.

 

30.

Ordered - That Orders of the Day (Government Business) No. 12 and No. 13 be Orders of the Day for next day of sitting.

 

Postponement

of Business.

 

31.

On the Order of the Day being read for the adjourned debate on the question - That the Local Government (Miscellaneous) Amendment Bill be now read a second time:

                 Debate resumed.

                 On motion of the Hon. T. G. Roberts, the debate was adjourned until next day of sitting.

 

Local

Government (Miscellaneous) Amendment Bill.

 

32.

Ordered - That Orders of the Day (Government Business) No. 15 to No. 17 be Orders of the Day for next day of sitting.

 

Postponement

of Business.

 

  33.

The following Messages from the House of Assembly were received and read:

Message No. 103

                 MR. PRESIDENT - The House of Assembly has agreed to Amendment No. 2 made by the Legislative Council in the Police (Complaints and Disciplinary Proceedings) (Miscellaneous) Amendment Bill without any amendment and has disagreed to Amendment No. 1 as indicated in the annexed Schedule.  The House of Assembly returns the Bill herewith and desires its reconsideration.

House of Assembly, 19 August 1998.                                                               J.K.G. OSWALD, Speaker.

 

Messages from

House of Assembly:

Police (Complaints

and Disciplinary Proceedings) (Miscellaneous)

Amendment Bill.

 

Schedule of the amendment made by the Legislative Council

to which the House of Assembly has disagreed.

Page 1, line 21 (clause 4) - After “amended” insert:

                       “¾

           (a)        by inserting after subsection (2) the following subsection:

            (2a)  The Commissioner or person representing the Commissioner in proceedings before the Tribunal must, at the commencement of the proceedings, indicate to the Tribunal which of the following categories of punishment the Commissioner considers would be appropriate if the Tribunal finds the member guilty of the breach of discipline:

                         (a)     category A¾termination or suspension of the member’s appointment or reduction of the member’s remuneration;

                         (b)    category B¾transfer of the member, reduction in the member’s seniority or imposition of a fine;

                         (c)     category C¾withdrawal of specified rights or privileges, a recorded or unrecorded reprimand, counselling, education or training or action of a kind prescribed by regulation.;

           (b)”

G. D. MITCHELL, Clerk of the House of Assembly.

                 Ordered - That the Message be taken into consideration on next day of sitting.

 

 

 

Message No. 104

                 MR. PRESIDENT - The House of Assembly has passed the Bill transmitted herewith, entitled an Act to repeal the Bulk Handling of Grain Act 1955, to which it desires the concurrence of the Legislative Council.

House of Assembly, 19 August 1998.                                                               J.K.G. OSWALD, Speaker.

                 Bill read a first time.

                 The Minister for Transport and Urban Planning then moved - That this Bill be now read a second time.

                 On motion of the Hon. P. Holloway, the debate was adjourned until next day of sitting.

 

Bulk Handling

of Grain Act

Repeal Bill.

 

 

Message No. 105

                 MR. PRESIDENT - The House of Assembly has agreed to the Bill returned herewith, entitled an Act to amend the Motor Vehicles Act 1959 and the Wrongs Act 1936, with the amendments indicated by the annexed Schedule, to which amendments the House of Assembly desires the concurrence of the Legislative Council.

House of Assembly, 19 August 1998.                                                               J.K.G. OSWALD, Speaker.

 

Statutes

Amendment

(Motor

Accidents)

Bill.

 

Schedule of the amendments made by the House of Assembly.

No. 1.       New clause, page 2 - After line 7 insert new clause as follows:

                 “Insertion of s. 113A

           5A.  The following section is inserted after section 113 of the principal Act:

                    Insurer not liable for aggravated damages or exemplary or punitive damages

             113A. An insurer is not liable to pay any aggravated damages or exemplary or punitive damages awarded in an action against the insured person in respect of death or bodily injury caused by or arising out of the use of a motor vehicle insured under this Part and the insured person is not entitled to be indemnified by the insurer in respect of such an award.”

 

 

No. 2.       New clause, page 2 - After line 7 insert new clause as follows:

                 “Insertion of s. 118B

           5B.  The following section is inserted after section 118A of the principal Act:

                    Interpretation of certain provisions where claim made or action brought against nominal defendant

             118B.  (1)  The provisions of this Act prescribed by subsection (2) will be taken to apply where a claim is made or an action is brought against the nominal defendant under this Part as if, for the purposes of those provisions—

(a)    the motor vehicle in relation to which the claim is made or the action is brought were a motor vehicle insured under a policy of insurance; and

(b)    the nominal defendant were the insurer and any liability of the nominal defendant were a liability of the insurer under the policy of insurance.

             (2)  For the purposes of subsection (1), the following provisions of the Act are prescribed:

(a)    sections 110, 111 and 111A;

(b)    section 124(6a);

(c)    section 124AD;

(d)    section 125B;

(e)    sections 127 and 127A;

(f)     a provision specified by the regulations for the purposes of subsection (1).”

 

 

No. 3.       Page 2, line 17 (clause 6) - After “vehicle” insert “or part of the vehicle,”.

No. 4.       Page 2, lines 19 to 23 (clause 6) - Leave out subsection (6a) and insert:

                            “(6a) Where a claim is made upon an insured person in respect of an accident of a kind referred to in subsection (1), a person must not give the insurer, or someone known by the person to be engaged by the insurer in connection with the claim, any information that the person knows is material to the claim and is false or misleading.

                 Maximum penalty:       $1 250 or imprisonment for 3 months.”

No. 5.       Page 3, lines 14 to 18 (clause 8) - Leave out section 124AC and insert:

                 “Amount recoverable by insurer set off against compensation

           124AC.  The insurer may set off the whole or part of an amount that the insurer is entitled to recover from a person under this Part against a liability in respect of the person’s death or bodily injury caused by or arising out of the use of a motor vehicle where the liability is owed by the insurer or an insured person.”

 

 

No. 6.       New clause, page 3 - After line 23 insert new clause as follows:

                 “Insertion of s. 125B

           8A.  The following section is inserted after section 125A of the principal Act:

                    Acquisition of vehicle by insurer

             125B.  (1)  If—

(a)    the insurer considers it necessary to acquire the motor vehicle for the purposes of the conduct of negotiations or proceedings connected with the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle; and

(b)    the owner of the vehicle is unwilling to sell the vehicle to the insurer at all or for a price the insurer considers reasonable,

the insurer may acquire the vehicle compulsorily in accordance with this section.

           (2) The insurer may, for the purposes of compulsorily acquiring the motor vehicle, apply to the Magistrates Court for a valuation of the vehicle.

           (3)  If within one month after the date of a valuation by the Court, the insurer pays into the Court the amount of the valuation, the Court—

(a)    must make an order vesting title to the motor vehicle in the insurer; and

(b)    may make any other incidental or ancillary orders that may be necessary or desirable in the circumstances of the case.”

 

 

No. 7.       Page 3 (clause 9) - After line 29 insert new definition as follows:

                 ‘ “prescribed limit”, in relation to prescribed services, means the limit prescribed for the prescribed services for the purposes of section 32 of the Workers Rehabilitation and Compensation Act 1986;’

No. 8.       Page 3, line 31 (clause 9) - Leave out “for the prescribed services by regulation under subsection (2)” and substitute “for the prescribed services for the purposes of section 32 of the Workers Rehabilitation and Compensation Act 1986”.

No. 9.       Page 3, line 34 (clause 9) - Leave out “a regulation” and substitute “notice”.

No. 10.     Page 3, line 36 (clause 9) - Leave out “Governor may, by regulation” and substitute “Minister may, by notice in the Gazette”.

No. 11.     Page 3, lines 37 and 38 (clause 9) - Leave out paragraph (a).

No. 12.     Page 4 (clause 9) - After line 1 insert new paragraph as follows:

                 “(c)    vary or revoke a notice under this subsection.”

 

 

No. 13.     Page 4 (clause 9) - After line 16 insert new subsections as follow:

                            “(4a)  For the purposes of this section, a charge for prescribed services is excessive if—

                  (a)    the charge exceeds the prescribed limit or the charge allowed for the prescribed services under the prescribed scale; or

                  (b)    in the case of prescribed services for which there is not a prescribed limit and to which a prescribed scale does not apply—the charge exceeds an amount that the Magistrates Court considers reasonable for the provision of the services.

                              (4b)  The Magistrates Court may, on application by the insurer—

 

 

                  (a)    where an injured person has been charged an excessive amount for prescribed services—reduce the charge by the amount of the excess and, if the charge has been paid to the service provider, order the service provider to pay the amount of the excess to the insurer; or

                  (b)    where an injured person has received prescribed services that the Court considers were, in the circumstances of the case, inappropriate or unnecessary—disallow the charge for the services and, if the charge has been paid to the service provider, order the service provider to pay the amount of the charge to the insurer.”

No. 14.     Page 4, lines 22 to 29 (clause 9) - Leave out subsections (6), (7) and (8).

No. 15.     Page 4, lines 30 to 38 and page 5, lines 1 to 4 (clause 9) - Leave out new section 127B.

No. 16.     Page 5 (clause 10) - After line 8 insert new paragraphs as follow:

                  “(aaaa)    by striking out subparagraph (i) of paragraph (a) of subsection (1) and substituting the following subparagraph:

(i)      the injured person’s ability to lead a normal life was seriously and significantly impaired by the injury for a period of at least six months;;

                    (aaa)      by striking out subparagraph (ii) of paragraph (c) of subsection (1) and substituting the following subparagraph:

(ii)     a person who—

(A)   is a parent, child or spouse, or was at the time of the accident a spouse, of a person who was killed, injured or endangered in the accident; and

(B)    was at the scene of the accident when the accident occurred or shortly after the accident occurred;;

                     (aa)        by inserting after paragraph (c) of subsection (1) the following paragraph:

(ca)  in assessing possibilities for the purposes of assessing damages to be awarded for loss of earning capacity, a possibility is not to be taken into account in the injured person’s favour unless the injured person satisfies the court that there is at least a 25 per cent likelihood of its occurrence; and;”

No. 17.     Page 5 (clause 10) - After line 11 insert new paragraph as follow:

                  “(ab)                            by inserting after paragraph (h) of subsection (1) the following paragraph:

(ha)     damages awarded for loss of consortium must not exceed four times State average weekly earnings; and;;”

No. 18.     Page 5, line 28 (clause 10) - After “the prescribed percentage” insert “or such greater percentage as the court thinks just and reasonable having regard to the extent to which the accident was attributable to the injured person’s negligence”.

 

 

No. 19.     Page 5, line 32 (clause 10) - After “25 per cent” insert “or such greater percentage as the court thinks just and reasonable having regard to the extent to which the proper wearing of a seat belt would have reduced or lessened the severity of the injury”.

No. 20.     Page 6, line 5 (clause 10) - After “25 per cent” insert “or such greater percentage as the court thinks just and reasonable having regard to the extent to which the proper wearing of a safety helmet would have reduced or lessened the severity of the injury”.

No. 21.     Page 6, line 32 (clause 10) - After “25 per cent” insert “or such greater percentage as the court thinks just and reasonable having regard to the extent to which being within the compartment would have reduced or lessened the severity of the injury”.

G. D. MITCHELL, Clerk of the House of Assembly.

                 Ordered - That the Message be taken into consideration on next day of sitting.

 

 

 

        Message No. 106

                 MR. PRESIDENT - The House of Assembly has agreed to the Bill returned herewith, entitled an Act to give effect to a cooperative scheme for dealing with crimes at sea; and for other purposes, without any amendment.

House of Assembly, 19 August 1998.                                                               J.K.G. OSWALD, Speaker.

 

Crimes at

Sea Bill.

 

34.

The President made the following Statement:

                 The Legislative Council has received a Message No. 107 from the House of Assembly returning the Legal Practitioners (Miscellaneous) Amendment Bill without any amendment.  Unfortunately, the House of Assembly has overlooked a request contained in Message No. 72 from the Legislative Council to insert a Money Clause No. 52 in the Bill.  Therefore, the Legislative Council should not formally receive this Message because this would conclude the process.  Instead it will be returned to the House of Assembly for its full consideration by that House.

 

President’s Statement:

Message from

House of Assembly - Legal Practitioners (Miscellaneous) Amendment Bill.

 

  35.

The following Message from the House of Assembly was received and read:

Message No. 108

                 MR. PRESIDENT - The House of Assembly has agreed to the Bill returned herewith, entitled an Act to amend the Acts Interpretation Act 1915, the Criminal Law Consolidation Act 1935, the Environment, Resources and Development Court Act 1993, the Evidence (Affidavits) Act 1928, the Land Acquisition Act 1969, the Oaths Act 1936, the Partnerships Act 1891, the Police (Complaints and Disciplinary Proceedings) Act 1985, the Public Trustee Act 1995, the State Records Act 1997, the Strata Titles Act 1988, the Wills Act 1936 and the Youth Court Act 1993, without any amendment.

House of Assembly, 19 August 1998.                                                               J.K.G. OSWALD, Speaker.

 

Message from

House of

Assembly:

Statutes

Amendment (Attorney-

General’s

Portfolio) Bill.

 

  36.

Ordered - That the Council, at its rising, do adjourn until tomorrow, at eleven o’clock.

 

Next Day

of Sitting.

 

  37.

Council adjourned at twenty-nine minutes to eleven o’clock until tomorrow at eleven o’clock.

 

Adjournment.

 

 

_________________________

 

 

 

 

 

Members present during any part of the sitting:

 

 

 

The Hon. T. G. Cameron

The Hon. T. Crothers

The Hon. L. H. Davis

The Hon. J.S.L. Dawkins

The Hon. M. J. Elliott

The Hon. I. Gilfillan

The Hon. K. T. Griffin

 

The Hon. P. Holloway

The Hon. S. M. Kanck

The Hon. D. V. Laidlaw

The Hon. R. D. Lawson

The Hon. R. I. Lucas

The Hon. C. A. Pickles

The Hon. A. J. Redford

 

The Hon. R. R. Roberts

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. J. F. Stefani

The Hon. G. Weatherill

The Hon. N. Xenophon

The Hon. C. Zollo