Environment, Resources and Development Court Act 1993

In ForceSA

Jurisdiction

South Australia

Collection

act

Plain English Summary

8/10 complexity

What this Act does, who it affects, and how it works

Mechanically, the Act creates the Environment, Resources and Development Court (ERD Court) and sets out how it is composed, what cases it can hear, how hearings are run, and what powers judges, magistrates, commissioners and registrars have (short title and purpose: front matter; establishment: s4; jurisdiction: s7; composition: Part 3; constitution: s15). The Act also delegates making of rules and regulations for Court practice (s48–49).
Who is affected: parties to environmental, planning, resource, development and related disputes in South Australia; persons and businesses whose property or activities are the subject of proceedings; public bodies and Ministers who may intervene (s17(5)); experts, witnesses and representatives who take part in proceedings; and persons who may be made parties by Court order (s17(1)).
What the Court can decide and order: the Court has both civil and limited criminal jurisdiction as granted by this Act or other Acts (s7(1)). It may hear summary and minor indictable offences where regulations confer that jurisdiction, but it cannot deal with major indictable offences (s7(1a)–(3a)). The Court may make declaratory judgments (s28), restraining orders affecting property (s28A), injunctions to preserve subject matter (s34), interlocutory and other procedural orders (ss 35, 35A), and orders about costs and security for costs (ss 29, 39). It can also make binding settlements recorded at conferences or mediation (ss 16(6), 28B(5)).

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What it does

This Act establishes the Environment, Resources and Development Court (ERD Court) as a specialist superior court of record for South Australia (s 4, s 5). Its core function is to exercise the jurisdiction conferred on it by the Act itself or by any other Act, which covers areas such as planning, development, environmental protection, resource exploration, native title, building regulation, heritage, and related fields (s 7(1)). The Court may also be given jurisdiction over summary or minor indictable offences by regulation, provided that the regulation does not confer jurisdiction over offences under more than one Act at a time (s 7(2), (3), s 49(3)). The ERD Court does not have jurisdiction over major indictable offences (s 7(1a)). When dealing with summary or minor indictable offences, the Court must apply the same procedures as the Magistrates Court under the Summary Procedure Act 1921, subject to any prescribed modifications (s 7(3a)). For minor indictable offences, the Court must be constituted by a Judge alone, and if a defendant elects trial in a superior court, the Court must commit the defendant to the District Court for trial by jury (s 15(14), s 7(3b)). The Court also has a distinctive sentencing cap: for minor indictable offences, it cannot impose a fine exceeding the lesser of the Act’s maximum or $300,000, nor a sentence exceeding the lesser of the Act’s maximum or two years; if a greater penalty is warranted, the Court must remand the defendant to the District Court for sentence (s 7(4), (5)). Beyond criminal matters, the Court exercises a broad civil and administrative jurisdiction, including declaratory judgments, restraining orders, injunctions, and the power to make alternative orders not originally sought (s 28, s 28A, s 34, s 28C). The Act also establishes the Court’s composition, which includes a Senior Judge (a District Court judge), other judges, magistrates, commissioners (including native title commissioners), Associate Judges, and Judicial Registrars (ss 8-11A). The Court can be constituted in various ways: a full bench (judge plus magistrate and commissioner(s), or judge plus two commissioners), a single judge, magistrate, commissioner, or Judicial Registrar, or by two or more commissioners sitting together (s 15(1)). The Act provides for conferences as a mandatory first-instance step for certain proceedings, aiming to resolve disputes without formal hearing (s 16). It also empowers mediation, conciliation, and sentencing conferences to encourage negotiated outcomes and reparation (s 28B, s 28D). The Court has extensive evidentiary and procedural powers: it may issue summonses, enter and inspect land, compel evidence, refer technical questions to experts, and conduct hearings by electronic means or entirely on documents (ss 22-27, s 35A). Appeals from the Court lie to the Supreme Court or the Court of Appeal, depending on the type of decision and the constitution of the Court (s 30). The Act also makes provision for rules of court, regulations, court fees, and costs, including a scale of legal costs that practitioners cannot exceed without written client agreement (s 44, s 48, s 49). In summary, the Act creates a dedicated tribunal with both criminal and civil jurisdiction over a defined class of disputes, designed to operate with greater flexibility and less formality than ordinary courts in non-criminal matters (s 21).

Current sections

Direct links to the current provisions in Environment, Resources and Development Court Act 1993.

Official source available

Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.

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Sourced from South Australian Legislation (legislation.sa.gov.au), CC BY 4.0.

The Act’s expressed purpose is to establish the ERD Court and define its jurisdiction and powers (front matter). The mechanics give a specialist forum with flexible procedures (s21) and a mix of judicial and technical members (s15, s10). That structure concentrates judicial decision-making in a specialist setting while permitting technical input through appointed commissioners (s10). The trade-offs and incentive mechanisms you can read from the text are:
- Benefit concentration: parties with resource, planning or environmental disputes get access to specialist decision-makers (s15, s10). Appointing commissioners with field expertise embeds technical knowledge in decisions (s10(2)–(3)).
- Costs and compliance burdens: parties can be required to fund expert reports initially (s27(4)), pay Court fees (s45), give security for costs if ordered (s39), and face costs orders for obstructive conduct or misconduct (s29). These measures create financial incentives to settle, comply with process, or avoid unmeritorious litigation.
- Discretion and implementation risk: the Act gives the Court broad discretion to admit informal evidence (s21(1)(b)), order private hearings (s20(2)), conduct electronic or document-only proceedings (s35A), and refer or accept settlements (ss 16(6), 28B(5)). That discretion can expedite or tailor proceedings but places on parties the risk that the Court will exercise discretion in ways that affect preparation, costs and access.
- Effects on private enterprise and property transactions: the Court can make restraining orders that prevent dealing with property where enforcement of a future order is at risk (s28A). That is a direct legal mechanism that can impede or secure commercial transactions until litigation is resolved.
- Limits on criminal exposure: the Court’s criminal jurisdiction is limited to summary and minor indictable offences where conferred; it cannot try major indictable offences (s7(1a)–(3a)), and sentencing limits for minor indictable matters are capped unless remitted to the District Court (s7(4)–(5)). This shapes the kinds of criminal exposure parties face in this forum.

Main concepts

The Act defines several key concepts that underpin its operation. The “Court” means the Environment, Resources and Development Court established by the Act (s 3(1)). A “relevant Act” is either an Act that confers jurisdiction on the Court or an Act that creates an offence triable by the Court (s 3(1)). This means the ERD Court’s jurisdiction is not self-contained but is triggered by other statutes, such as the Planning, Development and Infrastructure Act 2016 or the Environment Protection Act 1993. “Evidentiary material” is defined broadly as any document, object or substance of evidentiary value, or that the Court believes should be produced for that purpose (s 3(1)). The Act also introduces “native title jurisdiction” (the Court’s power to hear and determine a native title question) and “native title commissioner” (a commissioner with expertise in Aboriginal law, traditions and customs, appointed after consultation with the Commonwealth Minister) (s 3(1), s 10(2a), (2b)). The term “members of the Court” includes judges, magistrates, commissioners, and Judicial Registrars (s 3(2)). “Full bench” is a specific constitution: either a Judge, a magistrate and not less than one commissioner, or a Judge and not less than two commissioners (s 15(1)(a)). A full bench is only used if parties request it at a conference or the Senior Judge deems the questions so important they require it (s 15(2)). A “conference” is a preliminary, private meeting presided over by a member of the Court (appointed by the Senior Judge) aimed at exploring resolution without formal hearing (s 16(1), (2), (5)). Any settlement reached at a conference is binding on the parties (s 16(6)). A “sentencing conference” is a post-conviction (or post-guilt) meeting convened if the defendant expresses contrition and consents, with the primary purpose of negotiating reparation or other actions to show contrition (s 28D). The Court may defer sentence for up to three months after the agreement to allow the defendant to fulfil the negotiated actions (s 28E(1), (2)). A “restraining order” is an order preventing dealing with property if proceedings appear reasonable, the property may be required to satisfy an order, and there is a substantial risk of disposal (s 28A). “Alternative orders” allow the Court to make a different form of order than what the applicant sought if it is more appropriate (s 28C). The concept of “equity, good conscience and the substantial merits” applies to the Court’s procedure in non-criminal, non-contempt proceedings, under which the Court is not bound by the rules of evidence and must act without regard to legal technicalities (s 21(1)). The Act also uses “divisional penalties” and “divisional expiation fees” as provided in the appendix, which sets out maximum fines and imprisonment based on penalty divisions (Divisions 1 to 12) that are used in cross-references in other provisions (e.g., s 20(3) provides a “Division 6 fine”). Finally, “rules” refers to rules of court made by the Senior Judge and one other Judge, published in the Gazette, which cannot be inconsistent with any relevant Act or regulations (s 48).

Who it affects

The Act directly affects the judicial and administrative personnel of the ERD Court itself: the Senior Judge, other District Court judges designated as judges of the Court, magistrates designated as members, commissioners (including native title commissioners), Associate Judges, Judicial Registrars, and the Court’s administrative staff including the Registrar and Deputy Registrar (ss 8-14). These persons exercise jurisdiction, perform conferences, and carry out the Court’s business under the Act. The parties to proceedings are directly affected: any person or entity who brings or defends proceedings in the ERD Court, whether as applicant, respondent, defendant, or joined party (s 17). The Act allows the Court to join a person as a party (other than in criminal proceedings) by order, even on application without notice (s 17(1), (3)). Government ministers may intervene in proceedings that involve a question of public importance (s 17(5)). Legal practitioners and other representatives represent parties and are subject to costs orders for neglect or incompetence, including disallowance of costs, indemnification, or payment of compensation for wasted time (s 29(3), (4)). Witnesses are affected by summons, arrest warrants for non-compliance, and the obligation to give evidence or produce evidentiary material; they may also be liable for costs if they fail to appear without reasonable excuse (s 22, s 29(6)). Defendants in criminal proceedings face the jurisdiction of the Court for summary and minor indictable offences, with sentencing caps unless remanded to the District Court (s 7(4), (5)). They may also participate in sentencing conferences if they express contrition (s 28D). Persons with property subject to a restraining order are prohibited from dealing with it except as permitted (s 28A). The public has a right to inspect or obtain copies of court records, transcripts, documentary evidence, and decisions, subject to certain restrictions (s 47(1), (2)). Native title claimants, miners, developers, and persons involved in compulsory acquisition are affected because proceedings involving native title questions, mining or exploration, or compulsory acquisition of land may be transferred between the ERD Court and the Supreme Court (s 20A). The Act also affects government agencies and bodies that make decisions under relevant Acts: on appeal, they must provide the Court with all relevant documents, and the Court may direct them to furnish a report (s 21(2), (3)). The Registrar is responsible for custody of funds paid into court and for issuing certified copies of judgments (s 40A, s 43). The Treasurer guarantees the safe keeping of money and securities held by the Court (s 40A(2)). The Sheriff and police may be involved in executing warrants to bring persons before the Court (s 22(3), s 25). Overall, the Act creates a specialist court system that touches anyone involved in South Australia’s environment, resources, planning, and native title sectors.

Key duties and rights

Duties of members of the Court: A member who has a pecuniary or other interest that could conflict with their official functions must disclose that interest to the parties and must not take part if the Senior Judge directs withdrawal or if a party does not consent (s 13). This applies whether the member is a judge, magistrate, commissioner, or Judicial Registrar. In a full bench, the Judge decides questions of law and procedure; other questions are decided by majority, with the Judge’s casting vote on an equal division (s 15(10)(a)). When two or more commissioners sit without a Judge, questions are decided by majority, and if there is an equal division, the matter goes to a Judge or umpire (s 15(10)(b)). The Senior Judge has the duty to administer the Court and may delegate powers (s 8(3), (8)). Duties of parties: Parties must comply with summonses, attend conferences, and obey court orders. A party who obstructs, delays, fails to attend, or fails to comply with a regulation or rule may face summary judgment or costs (s 17(4), (4a)). A settlement reached at a conference is binding on the party (s 16(6)). Rights of parties: A party is entitled to appear personally or by counsel or other representative (s 17(6)). Parties can request a transfer of proceedings to the Supreme Court in certain classes of case (s 20A). They may also apply for an adjournment, though costs may be ordered against them (s 29(2)). In non-criminal proceedings, the Court must act with minimum formality, is not bound by rules of evidence, and must act according to equity and good conscience (s 21(1)). Parties have the right to make submissions and present evidence, though the Court may require it in writing and limit time (s 21(5)). Rights of witnesses: A witness whose native language is not English and who is not reasonably fluent is entitled to give evidence through an interpreter (s 46(1)). Written evidence in a foreign language must have an English translation and a translator’s affidavit (s 46(2)). Rights of the public: Any member of the public may apply to inspect or obtain copies of court processes, transcripts, documentary evidence, and decisions (s 47(1)). However, certain material is restricted: material not taken in open court, suppressed material, sentencing material, photographs/recordings, and other prescribed classes can only be accessed with the Court’s permission (s 47(2)). The Court may impose conditions on access (s 47(3)). Rights in sentencing conferences: A defendant who expresses contrition may consent to a sentencing conference; the primary purpose is to negotiate reparation (s 28D). The defendant can agree to take action and the Court may defer sentence for up to three months to allow that action (s 28E). Rights regarding restraint of property: A respondent or defendant subject to a restraining order may apply for variation or revocation (s 28A(4)). They also have the right to be examined if the Court needs more evidence to identify property (s 28A(5)). Rights to appeal: A party has a right of appeal on a question of law, and with permission on a question of fact, to the Supreme Court or Court of Appeal depending on the type of decision (s 30). This right extends to representatives or witnesses against whom a costs order is made (s 30(3)). Rights regarding costs: A party against whom a costs order for misconduct is made must have been given a reasonable opportunity to make representations (s 29(4) by analogy to representatives, s 29(6b) for misconduct orders only if necessary in interests of justice). A legal practitioner must not charge above the prescribed scale without the client’s written agreement (s 44(2)).

Penalties and enforcement

The Act provides several mechanisms for enforcing compliance and punishing misconduct. Contempt of court is punishable by fine or imprisonment (s 38(1)). Both contempt in the face of the court (e.g., interrupting proceedings, insulting a member, refusing a lawful direction) and contempt arising from non-compliance with an order, direction, summons, or other process are covered (s 37, s 38(2)). Only a Judge or magistrate may exercise the contempt power (s 38(3)). For contempt arising from non-compliance, the Court may also make any costs order it thinks fit (s 38A). A person who obstructs a member or authorised officer exercising a power of entry or inspection commits contempt (s 24(3)). Dealing with property subject to a restraining order also constitutes contempt (s 28A(3)). The Act references divisional penalties for offences such as failing to comply with a court direction (s 20(3) provides a “Division 6 fine” for failure to comply with a direction about private hearings or publication restrictions). The appendix sets out divisional penalties: for Division 6, the maximum penalty is 1 year imprisonment or a $4,000 fine, and an expiation fee of $300. This is used in multiple other Acts that confer jurisdiction on the Court. Enforcement of judgments and orders is achieved by lodging a certified copy of the judgment or order with the District Court; once registered, proceedings may be taken on it as if it were a District Court order (s 43). Costs orders are available in several circumstances. If a party applies for or causes an adjournment, the Court may order costs against that party in favour of another (s 29(2)). If proceedings are delayed through a representative’s neglect or incompetence, the Court may disallow costs between representative and client, order the representative to indemnify, or order payment to the Registrar for time wasted (s 29(3)). A commissioner needs a Judge’s concurrence to make such an order (s 29(5)). A witness failing to appear without reasonable excuse may be ordered to indemnify parties and pay compensation for time wasted (s 29(6)). If a party has engaged in misconduct, the Court may order costs against that party, but only if necessary in the interests of justice (s 29(6a), (6b)). Security for costs may be required from a party (except in criminal proceedings), and if not given, the Court may dismiss proceedings or give judgment against the party (s 39(1), (4), (7)). A commissioner needs a Judge’s concurrence for such an order (s 39(6)). Interest is payable on money orders from the date the order takes effect at the prescribed rate, except for penalties (s 40). The Registrar is responsible for custody of money paid into court, and the Treasurer guarantees its safe keeping (s 40A). Unclaimed money remaining for six years may be dealt with under the Unclaimed Moneys Act 1891 (s 40A(5)). Court fees may be prescribed by regulation; the Court may remit or reduce them for poverty or other proper reason (s 45(1), (2)). If fees are outstanding, the Registrar may lodge a certificate with the District Court after serving a 14-day notice by certified mail, and it becomes enforceable as a District Court judgment (s 45(3), (4)). The Act also provides for arrest warrants if a person fails to comply with a summons or there are grounds to believe they will not comply; a Judge or magistrate may issue a warrant (s 22(3), (4)). A person arrested is eligible for bail under the Bail Act 1985 (s 22(5)).

How it interacts with other laws

The ERD Court Act is expressly designed to work in conjunction with other Acts that confer jurisdiction on the Court. The definition of “relevant Act” captures both Acts that confer jurisdiction and Acts that create offences triable by the Court (s 3(1)). The Court’s jurisdiction is therefore derivative: it only has the jurisdiction given to it by this or another Act, and it does not have inherent jurisdiction (s 7(1)). The Act lists examples of proceedings that may be transferred to the Supreme Court: native title questions (under the Native Title (South Australia) Act 1994), mining or exploration questions, and compulsory acquisition (s 20A). This demonstrates interaction with the Native Title (South Australia) Act, the Mining Act, the Petroleum and Geothermal Energy Act, and the Land Acquisition Act. The Act also provides that the Court, when dealing with summary or minor indictable offences, must apply the Summary Procedure Act 1921 as if the Court were the Magistrates Court, subject to any prescribed additions or modifications (s 7(3a)). If a defendant charged with a minor indictable offence elects trial in a superior court, the Court must commit them to the District Court for trial by jury (s 7(3b)). The Bail Act 1985 applies to persons arrested under warrant for failing to comply with a summons (s 22(5)). The Sentencing Act 2017 is referenced in relation to material placed before the Court during sentencing proceedings (s 47(2)(c)), and the sentencing conference provisions were inserted by the Statutes Amendment (Sentencing) Act 2017 (see legislative history). The District Court Act 1991 is central: the Senior Judge must be a District Court judge, and other judges, Associate Judges, and Judicial Registrars are designated from District Court offices (s 8, s 11, s 11A). The Magistrates Act 1983 is the source of magistrates who may be designated as members (s 9(1)). The Courts Administration Act 1993 governs the appointment of the Court’s administrative and ancillary staff (s 14(2)). The Unclaimed Moneys Act 1891 applies to unclaimed court funds (s 40A(5)). The Acts Interpretation Act 1915 is referenced for the table of divisional penalties and expiation fees in the appendix. Rules of court made under this Act cannot be inconsistent with any relevant Act or regulations (s 48(5)). The Act also interacts with other legislation through its appeal structure: appeals lie to the Supreme Court (single Judge) or the Court of Appeal, subject to any provision in the relevant Act that may modify appeal rights (s 30(1)). For instance, a relevant Act might restrict appeals on fact or require permission. The transfer mechanism under s 20A allows the Supreme Court to remove proceedings from the ERD Court, recognising that complex matters may be better handled in the higher court. The GST law (A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth)) is referenced in the costs provision to define GST payable on legal costs (s 44(3)). Overall, the Act creates a specialist court that is integrated into the broader South Australian court hierarchy and relies on other statutes to define its substantive jurisdiction.

Amendment history

The Act has been amended many times since its commencement on 6 December 1993. Key amendments include:

1994 - Environment, Resources and Development Court (Native Title) Amendment Act: inserted definitions for native title commissioner, native title jurisdiction, native title question; added s 10(2a)-(2b) requiring native title commissioners and consultation with Commonwealth Minister; inserted s 15(1a)-(1b) requiring a legal practitioner of 5 years standing and at least half the commissioners to be native title commissioners when sitting in native title jurisdiction; inserted s 20A for transfer of cases between ERD Court and Supreme Court; and amended s 18(4) regarding registries.
1995 - Statutes Amendment (Courts) Act and Statutes Amendment (Courts Administration Staff) Act: amended references to registrar, staff appointments, and administrative responsibility.
1996 - Statutes Amendment (Attorney-General’s Portfolio) Act: inserted s 38A for costs where contempt proved.
1998 - Statutes Amendment (Attorney-General’s Portfolio) Act: inserted s 45(3)-(4) for lodging certificates of unpaid court fees with District Court.
2000 - Statutes Amendment and Repeal (Attorney-General’s Portfolio) Act amended s 44 to include GST definitions. Development (System Improvement Program) Amendment Act amended s 10(3) (commissioner designations) and s 17(4)-(4b) (summary dismissal and costs).
2004 - Statutes Amendment (Courts) Act made extensive amendments: renumbered s 8(1)-(9) regarding Senior Judge; amended s 9(3) (magistrates’ administrative responsibility); substituted s 13 (disclosure of interest); amended s 14(1) and (4) (staff); amended s 15(1)-(4) (constitution of Court); amended s 16(2) (conferences); amended s 18(3) (sittings); amended s 48(3) (rules making power). Also omitted s 2 (commencement) under Legislation Revision and Publication Act.
2006 - Environment, Resources and Development Court (Jurisdiction) Amendment Act: added s 7(1a) excluding major indictable offences; amended s 7(2)-(5) regarding jurisdiction over summary/minor indictable offences; substituted s 15(14) requiring a Judge for minor indictable offences.
2006 - Statutes Amendment (New Rules of Civil Procedure) Act amended s 17(3) (joinder without notice) and s 30(2) (appeal as of right on law).
2009 - Statutes Amendment (Public Sector Consequential Amendments) Act amended Schedule 1 regarding commissioner entitlements.
2012 - Statutes Amendment (Attorney-General’s Portfolio) Act inserted s 29(6a)-(6b) (costs for misconduct), inserted s 40A (custody of funds), and amended Schedule 1.
2016 - Planning, Development and Infrastructure Act inserted s 21(5) (power to require written evidence, limit time) and s 35A (electronic hearings and proceedings without hearings).
2017 - Statutes Amendment (Sentencing) Act inserted ss 28D and 28E (sentencing conferences and deferral of sentence) and amended s 47(2)(c) (sentencing material access).
2019 - Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act amended s 36(1) (immunities). Supreme Court (Court of Appeal) Amendment Act amended s 30(1) (appeals to Court of Appeal) and s 31(1) (reservation of questions of law to Court of Appeal).
2023 - Statutes Amendment (Attorney-General’s Portfolio and Other Justice Measures) Act: amended s 3(1) (definition of registrar to exclude Judicial Registrar) and s 3(2) (members include Judicial Registrars); inserted s 11A (Judicial Registrars); amended ss 15(1), (7), (8), 16(7), 26, 30(1), 36(1), and 48(1) to include Judicial Registrars.
2024 - Statutes Amendment (Attorney-General’s Portfolio) Act: amended s 9(2) (magistrate as Associate Judge), s 11 (Associate Judge), s 15(6) (Associate Judge purposes), s 15(8) (Associate Judge on referral), s 26 (evidentiary summonses), s 30(1) (appeals), s 36(1) (immunities), s 48(1) (rules authorising Associate Judges and Judicial Registrars).
2025 - Statutes Amendment (Attorney-General’s Portfolio and Other Justice Measures) Act inserted s 15(15) (procedure when presiding judge or magistrate dies or is incapacitated).

Litigation history

The Act itself does not catalogue decided cases, but it provides a comprehensive appellate framework that has undoubtedly generated litigation. Section 30 defines the appellate routes: interlocutory orders, decisions of a single commissioner, magistrate, Associate Judge, Judicial Registrar, or registrar go to the Supreme Court constituted of a single Judge; all other decisions go to the Court of Appeal (s 30(1)(a)-(e)). Appeals are as of right on a question of law and with permission on a question of fact, though a relevant Act may displace or modify that principle (s 30(2)). This structure has produced case law interpreting the boundaries of the ERD Court’s jurisdiction, the procedural rules, and the application of the “equity, good conscience” standard. The ability to reserve questions of law for the Court of Appeal (s 31) also contributes to the body of precedent. The transfer mechanism under s 20A, which applies to native title, mining, and compulsory acquisition proceedings, has likely been used in significant matters that were then determined by the Supreme Court. The amendment history reflects several adjustments that may have been responses to judicial decisions. For example, the 2006 amendment that expressly excluded major indictable offences (s 7(1a)) and imposed sentencing caps (s 7(4)) may have clarified the Court’s criminal jurisdiction in response to earlier uncertainty. The 2025 insertion of s 15(15) (procedure on death or incapacity of the presiding judge or magistrate) likely addressed a specific lacuna revealed in practice. The interpretation of “evidentiary material” (s 3(1)) and the scope of the court’s power to compel its production under s 22 have also been considered in cases. The provisions on disclosure of interest (s 13) and the disqualification of conference members from later hearing the matter (s 16(11)) would have been tested. The costs provisions, particularly the 2012 insertion of s 29(6a)-(6b) limiting costs for misconduct to where necessary in the interests of justice, indicate a legislative response to litigation about the circumstances in which costs could be awarded. The Sentencing Act 2017 amendments introducing sentencing conferences (ss 28D-28E) may have been influenced by criminal law jurisprudence on restorative justice. While the Act’s legislative history shows constant refinement, the litigation history is best understood through the published decisions of the Supreme Court of South Australia and the Court of Appeal, which apply this Act and the relevant Acts that confer jurisdiction on the ERD Court. The finality of administrative decisions under s 47(4) (public access to evidence) suggests Parliament intended to limit litigation on that point.

Gotchas

Practitioners should watch for several subtle or easily overlooked provisions.

Disqualification after a conference: The member of the Court who presided at a conference under s 16 is disqualified from later sitting as a member for the hearing and determination of the matter unless all parties agree to their continued participation (s 16(11)). This is a strict rule; parties should be aware that consent to a particular conference member may later preclude that member from being the decision-maker.

No rules of evidence in non-criminal proceedings: In proceedings other than criminal or contempt proceedings, the Court is not bound by the rules of evidence and may inform itself as it thinks fit, acting according to equity, good conscience and the substantial merits without regard to legal technicalities (s 21(1)). This means that hearsay, opinion evidence, and otherwise inadmissible material may be considered. Practitioners must be prepared to deal with a more inquisitorial approach than in ordinary courts.

Costs for misconduct only if necessary in the interests of justice: The Court may order costs against a party who has engaged in misconduct, but only if it considers such an order necessary in the interests of justice (s 29(6a), (6b)). This is a higher threshold than a simple finding of misconduct. It is not an automatic costs follow the event regime.

No costs in criminal proceedings? Secure costs provisions do not apply to proceedings in respect of an offence (s 39(7)). This means a prosecutor cannot be required to post security. However, the general costs provisions in s 29 still apply, though they are limited to adjournments, delay, misconduct, and witness failures.

Sentencing caps and remand to District Court: For minor indictable offences, the Court cannot impose a fine exceeding the lesser of the Act’s maximum or $300,000, nor imprisonment exceeding the lesser of the Act’s maximum or two years (s 7(4)). If a greater penalty is deserved, the Court must remand the defendant to appear for sentence before the District Court (s 7(5)). This is a mandatory step, not discretionary. It means that the ERD Court is not the final sentencing court for more serious minor indictable matters.

No power to grant bail?: The Act does not expressly give the Court power to grant bail other than in the context of persons arrested under summons warrants, who are eligible for release on bail under the Bail Act 1985 (s 22(5)). For other criminal proceedings, the Summary Procedure Act 1921 will apply, but practitioners should check whether the ERD Court has the same bail powers as the Magistrates Court.

Conference settlements must comply with relevant Acts: The member presiding at a conference must not accept a settlement that appears inconsistent with a relevant Act, but may adjourn to allow parties to vary the settlement (s 16(9)(a)). Similarly for mediation settlements (s 28B(7)(a)). A settlement that would, for example, allow development that contravenes planning laws cannot be endorsed.

Alternative orders can surprise: Even though the applicant seeks a particular form of order, the Court may make any other form of order it considers more appropriate (s 28C). Parties should be aware that the result may not match what was pleaded.

Public access to evidence subject to restrictions: While s 47(1) gives a broad right to inspect court records, s 47(2) restricts access to material not taken in open court, suppressed material, sentencing material, and photographs/recordings without the Court’s permission. This includes material provided under s 13 of the Sentencing Act 2017 (victim impact statements, reports). The Court’s decision on access is administrative and final, not reviewable (s 47(4)).

Commissioner cannot join parties without consent or Judge’s concurrence: A commissioner may not make an order joining a person as a party except on application or with consent of the person to be joined, or with the concurrence of a Judge (s 17(2)). Similarly, a commissioner cannot make a costs order for representative neglect or security for costs without a Judge’s concurrence (s 29(5), s 39(6)).

Transfer of proceedings is mandatory consideration for certain matters: When deciding whether proceedings should be heard by the Supreme Court or the ERD Court, the Court must take into account the importance and complexity of the questions involved (s 20A(3)). This applies to native title, mining, compulsory acquisition, and prescribed classes. A party may apply, or the Court may act on its own initiative.

Sentencing conference deferral limited to three months: As a general rule, proceedings should not be adjourned under a sentencing conference for more than three months from the date of the agreement (s 28E(2)). This is a guideline but likely strictly applied.

No implied repeal: The saving provisions and the note that references to other legislation may be obsolete mean that practitioners must check the current versions of all relevant Acts. The appendix is provided for convenience only (note: "This appendix is provided for convenience of reference only").

How to comply

For parties and their representatives involved in proceedings before the ERD Court, the first step is to understand whether the matter must first go to a conference under s 16. If a relevant Act or the rules require it, the proceedings will be referred to a conference at first instance (s 16(1)). Parties should attend the conference in good faith and be prepared to explore resolution. Any settlement agreed to by a representative is binding on the party (s 16(6)). If no settlement is reached, the conference member is disqualified from later hearing the matter unless all parties consent (s 16(11)). For criminal defendants, if you wish to express contrition, you may consent to a sentencing conference under s 28D. This can lead to a deferred sentence of up to three months to allow reparation or other contrition actions (s 28E). However, the agreement must be consistent with the relevant Act (s 28D(3), s 28E(2)). For applicants in civil or administrative matters, be aware that the Court is not bound by rules of evidence and may adopt alternative orders (s 21(1), s 28C). Present your case clearly and be prepared for an informal, inquisitorial process. Provide all relevant documents promptly, especially if the Court requests them under s 21(2). For witnesses, comply with any summons to attend and produce evidentiary material. If you cannot attend, seek an adjournment or have a reasonable excuse; failure can result in an arrest warrant, costs, or contempt (s 22, s 29(6)). If your native language is not English and you are not fluent, you are entitled to an interpreter (s 46). For legal practitioners, ensure you do not charge costs above the prescribed scale unless you have your client’s written agreement (s 44(2)). Avoid conduct that causes delay or obstruction; the Court may disallow costs, order indemnification, or order you to pay compensation for wasted time (s 29(3)). If you represent a party in a conference, remember that your agreement to a settlement is binding (s 16(6)). For government agencies subject to appeal, when a request is made by the Court, you must send all relevant documents, applications, reports, plans, and other materials (s 21(2)). The Court may direct you to furnish a report (s 21(3)). For persons dealing with property, if a restraining order is in place, you must not deal with the property except as permitted by the order, or you risk contempt (s 28A(3)). If you are served with a summons to attend for examination about property, you must comply (s 28A(5)). For members of the public seeking access to court records, you may apply under s 47 for inspection or copies of most material, but for restricted categories (material not taken in open court, suppressed material, sentencing material, recordings) you must seek the Court’s permission (s 47(2)). The decision is final and not reviewable (s 47(4)). For all parties, attend all hearings and comply with all directions. The Court may dismiss proceedings, give summary judgment, or order costs if you obstruct, delay, fail to attend, or fail to comply with a rule or order (s 17(4), (4a)). If you intend to appeal, note that appeals on questions of law are as of right, but appeals on questions of fact require permission (s 30(2)). The notice of appeal must be filed within any time limits set by the relevant Act or rules. If you need to suspend the operation of a decision pending appeal, apply to the ERD Court or the Supreme Court (s 32). Finally, for all users of the Court, be aware of the possibility of electronic hearings and proceedings without hearings under s 35A; the Court may allow participation by telephone or video link, or conduct proceedings entirely on documents. Cooperate with such arrangements to ensure efficient resolution. Ensure that any fees due are paid; if not, the Registrar may lodge a certificate with the District Court after 14 days’ notice by certified mail, and it becomes enforceable as a District Court judgment (s 45(3), (4)).