JUDICIAL ADMINISTRATION (AUXILIARY APPOINTMENTS AND POWERS) (QUALIFICATION FOR APPOINTMENT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 May 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (15:48): It is with pleasure that I address the question of the Judicial Administration (Auxiliary Appointments and Powers) (Qualification for Appointment) Amendment Bill 2016. The opposition will not be supporting this bill. It is the view of the opposition that unless a cogent case is put to the parliament to extend the appointments of auxiliary judges in South Australia, and unless that is presented to us, then there is no published justification for progressing this bill.

Furthermore, to ask the parliament to give the Attorney-General the exclusive role of being able to appoint any person he likes anywhere in the world to be a judge in South Australia is completely unacceptable, and I am stunned that the cabinet would even consider approving the advance of a bill with that generous and irresponsible breadth of power to the Attorney.

Let's consider what we are being asked to do. Under the current law in South Australia, like other jurisdictions in Australia from time to time we need to have appointments of judges from outside of South Australia. The need to do that is common, as is the sharing of judges around the country, and New Zealand when called upon. It happens, for example, when there is a conflict of interest identified in respect of current judges in our courts.

For example, as occurred recently, there was litigation involving allegations against pretty much the world, but included judges, attorneys-general, former attorneys-general and very senior legal people across the state. Obviously, it was not appropriate that a local judge hear the matter, because the bevy of alleged people who had acted in the matter were either well known to the judges and/or their counsel, had been involved in the case, etc. In that instance, they brought in an auxiliary judge, appointed from Western Australia, who is undertaking that role.

We have a Judicial Administration (Auxiliary Appointments and Powers) Act, which was established in 1988. What the opposition observed in the brief contribution by the Attorney-General in presenting this bill is that he confined his reasons to the following:

It will permit, a judicial officer from another jurisdiction with particular expertise, perhaps of a technical nature, to be appointed to hear a case that would significantly benefit from that expertise.

That is reason No. 1, and reason No. 2 is:

It is intended that this may facilitate judicial 'exchanges' in appropriate circumstances. It will enable the judiciary to draw on the experience and expertise of international colleagues. This in turn may assist to improve processes and procedures, or substantive outcomes.

That is it. That is the singular basis upon which the Attorney has had the decency to tell the parliament about why it is necessary for him to have the power to appoint judges in other jurisdictions outside of Australia and New Zealand. That is what he has presented to us, but that is simply not enough.

I ask the question, and I think all members of the chamber should ask the question: is there a demand? Have we used up all the other judges in other jurisdictions who are familiar with our practices and procedures, and of course our laws? Secondly, have we got a shortage of judges in South Australia to undertake the work? The answer to that is probably yes, but that has not set any precedent for bringing in interstate judges to do outstanding work. Thirdly, would they come to South Australia anyway? I will come back to that point in a moment. Fourthly, what will be the cost?

Let me address the first point: do we have a shortage of judges in South Australia? Yes, we do. We are down in superior court jurisdictions and we have a waiting list in the District Court for criminal trials which extends into years. I think it is fair to say that the operation of the court is significantly under pressure.

Have we run out of judges from interstate? Surprisingly, members may note that, on inquiry, we have made only two appointments outside of South Australia in the last five years, and they have been to the Supreme Court. None of them has come from New Zealand. Furthermore, they have come at a cost most recently identified as $3,880.50 per week. We have not done an exchange, as has been identified by the Attorney as being of some benefit to South Australia. In answering the other question, which is raised directly from the Attorney's statement about a judicial officer from another jurisdiction with a particular expertise, perhaps of a technical nature, I have absolutely no idea what he means by that.

He ought to be explicit to the parliament. If there is some deficiency in the judges we have, either in their capacity or area of expertise, if we have been unable to progress a case in South Australia because one of our judges is not sufficiently expert in a technical area, then we should know about it. We should identify if there is a deficiency in the intellect or area of expertise or experience in the breadth of the judiciary. Certainly we should know about it, because if there is such a deficiency then the government needs to ask itself the question, 'What have we done in appointing all the judges we have down there now?'

I think everyone except Justice Vanstone (who was appointed by the former attorney-general in this government), from the District Court to the Supreme Court, every single other judge has been appointed by the Labor government, by the Rann/Weatherill governments, by the attorneysgeneral Atkinson and Rau, so I think as a parliament we need to ask ourselves questions. If we have a problem—allegedly—in the lack of expertise in the judiciary, then they need to ask themselves some very pressing questions because they are their appointments.

In fact, what they need to do is come to us and tell us what we are missing. What is it that we need, to bring in a judge that can be picked by the Attorney-General and brought to South Australia to be able to do their work, that is apparently deficient or that will benefit South Australia? Either way I think we need some answers from the government.

In respect of, 'Will they come?', probably not. If a judge from Mozambique were invited by the Attorney-General to come and provide the particular expertise that he or she could offer, and they googled South Australian courts, what would they find? They would find the Supreme Court of South Australia in an iconic building that is crumbling; buckets in chambers, dripping courtrooms, the place in decay, the worst courts in Australia. Do you think they would want to come here? Not likely.

So I raise this question: why would we even have the temerity to ask judges of other superior courts in the world to come to our courts and insult them with the premises in which we expect our current judiciary to work? What will the cost be? The Attorney-General has not told us anything, except that he penned me a letter yesterday to tell me that the last judge we brought in was from interstate at a cost of nearly $4,000 a week. Members might know that they cannot get access to our judicial pension system as the current act prohibits that, and there is nothing I have seen this bill that changes it.

The real question raised is: why is the government doing this? I can only think that this is the new judges' junket bill, because the penultimate paragraph of this bill highlights and talks about the opportunity to do exchanges. It does not surprise me that there has been an indication of support, apparently, from the Chief Justice of the Supreme Court for this initiative of the government; it does not surprise me at all.

The Hon. J.R. Rau: It's his idea.

Ms CHAPMAN: The Attorney-General calls out, 'It's his idea.' I am informed that it was not his idea, but I will come to that in a moment.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Yes, well, you can present that if you like, but I will come to you with another circuitous route upon which this comes to the parliament. The Attorney-General's presentation to us is to say that this bill is intended to facilitate judicial exchanges in appropriate circumstances. We do not get any more detail about this. We have to dig down and try to find out for ourselves what might have prompted this initiative. What is the opportunity, what is the basis upon which we draw from the experience and expertise of international colleagues that is so lacking in what we have here that we need to exchange with others?

I think there is, firstly, the indecency of the Attorney bringing this bill asking us to support a bill that is so bereft of detail and justification, other than the fact that we think it is a way that he can give judges a travel allowance they currently do not have. Judges in South Australia are very poorly dealt with, I suggest. Not only do they have a vacancy sitting next to them in the superior courts but also, compared with other judges of supreme courts and appeal courts, for example in New South Wales or at the federal level, they have a pretty lousy deal when it comes to having an opportunity to attend international conferences and the like. To me, this is the backdoor way of giving judges a holiday in Mauritius. That is what this is about.

It is one way the Attorney-General can say to them, 'Well, listen, I'm going give you a good deal here. I'll be able to set up some exchanges. You can do what you like in relation to that.' We all know what the Attorney-General's real agenda here is: he wants to restructure the courts in South Australia. He wants to slash and burn through the District Court, and he wants to set up a new regime. He is going to have to give a few sweeteners to the judges on the way through before he sets up his new trial court and appeal court in this state. He may have some good initiatives, but I am yet to see them.

He may have some good initiatives in relation to restructuring. Our courts are haemorrhaging. We are willing to look at any worthy proposal, but this has just been thrown together and presented to the Attorney-General. He has snapped it up as a way of filling this week's legislative agenda, but he puts us all at risk. Let me give you two examples of that; one is that nowhere in the bill is there any recognition of or restriction on which country these judges would come from. At the very least, a responsible Attorney-General in floating this initiative, unique in Australia, to our parliament for consideration—

The Hon. J.R. Rau: It's innovative.

Ms CHAPMAN: I would not call it innovative: I would call it a light bulb idea he has rushed into this place without proper preparation and certainly without a case to justify an exchange with any jurisdiction outside Australia, other than with New Zealand, which is the current regime.

Firstly, there is no restriction on the countries. Would it not be reasonable at the very least that this bill include a provision that a judge from another jurisdiction would have to come from a country that is a signatory under the Commonwealth of Nations, a signatory to the charter of the commonwealth with Her Majesty Queen Elizabeth II? Would that not be a fundamental prerequisite for bringing a judge to South Australia?

They would have signed a charter and made a commitment to a number of important principles, including, most importantly in relation to this area, the role of good governance, the rule of law and, of course, the separation of powers. There is a myriad of others that are important, but for the purposes of having a commitment we would want to know that the judges who have been appointed in other jurisdictions, who are going to spend up to 12 months in South Australia hearing our cases, at least come from a country that is a signatory to that charter. That would have to be the very minimum.

The second aspect is that we need to have some understanding of the rules about the exchange of judges. Let's assume for the moment that a meritorious case was presented to us by a country which had a similar court structure and common law base and which was operating in a commonwealth country environment. Let's assume that country was able to sit down and present to us a case for an academic exchange for continuing professional development of judges, mediators, arbitrators and so on and present a case where we could sit down and work out the financial arrangements of the exchange, what cases they were going to hear and the nature of work that was going to be undertaken, particularly if they had any academic role while they were present.

Let's assume that there is a country out there from which we would actually welcome that exchange. This parliament needs to have some clue about who it is. We need to have some information presented to us and not just come in here and say, 'Look, whoever the prescribed person is in the prescribed jurisdiction, which is determined by the Attorney-General, he will make that decision. He will sort that out with the Chief Justice. The fees will be sorted out, and we do not need to know anything about it.' That is totally unacceptable to our side of the house.

If there is a cogent case, put it to us. One idea that has been presented by the President of the Australian Bar Association, Patrick O'Sullivan QC, who I understand has spoken to the Chief Justice, Mr Kourakis, about this initiative—'innovative' as it is called by the Attorney—was to consider some further formal exchange of academic professional development and even judicial interaction with Singapore. Singapore is a member of the Commonwealth of Nations. Obviously, it is proximate to the north of Australia. It is a country I have visited, as I am sure have other members of the house.

Some would know that the Chief Justice of the Supreme Court of Singapore has attended legal conferences in Adelaide because he is a former scholar and graduate of the University of Adelaide. We are proud of that contribution, and I am sure that the Attorney-General and other members would be familiar with the very significant amount of interaction we have between our universities and those from Singapore who choose to come to Adelaide for their higher education and, obviously, for our high learning skills.

We have significant interaction with Singapore. It is strategically placed in the Asian region, and the interaction that already exists between Australia—not just South Australia—and Singapore is significant. If a cogent case were put to us that it would be of benefit for a judge here and a judge in Singapore to exchange, and for that judge to undertake work in South Australia, and a number of prerequisites were met—including financial arrangements, what cases would be heard and what cases would not be heard, whether there would be an academic circuit, etc.—we would have a look at it. There is no question about that.

We do not need to change the auxiliary judges legislation and give the Attorney-General some sort of carte blanche to send South Australian judges off into the world, or bring in other judges from outside, from anywhere in the world. That is just completely unacceptable. It is quite insulting to us as a parliament that he should think that we would even consider legislation that was so vague and without any meritorious argument being presented to us.

Let's go back to Mr O'Sullivan's idea that we look at somewhere such as Singapore, which already has established an academic and, as I understand it, continuing professional development liaison with the legal fraternity, and that is great. Mr O'Sullivan happens to be a South Australian and, as I say, he is the President of the Australian Bar Association. Let's work through that and see whether there is an opportunity for judges to meet. They may not necessarily have to be auxiliary judges. It may be that a sufficiently meritorious case would be presented to us that the government were persuaded to share the exchange of judicial education of members of our judiciary without their actually hearing cases and having to be briefed on all the protocol of the practices of the South Australian jurisdiction.

At this stage, can I say that on the face of it all this is the opportunity for the Attorney-General to provide a junket for judges, which is disclosed partially in the penultimate paragraph of his brief second reading contribution. It is without any protection, it is not in the act, and it is not acceptable to the opposition.

Certainly, from the information that has been provided to us, there is no demand. There is no shortage of judges in other jurisdictions. I do not know whether we have had anybody come from New Zealand, but we already have law that allows for that. I am not satisfied that they would come anyway and want to do an exchange with our disgraceful court structure.

Finally, we need to have the issues of cost presented to us and the absolute minimum protection that, if we have other people come into our jurisdiction, for whatever argued reason, they come from a country that has a legal system that respects the same principles and standards we do and that is a signatory to the commonwealth. If the Attorney-General wants to give some serious thought to a sensible proposal, we will look at it, but this is neither sensible nor acceptable.