STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) BILL 29 October 2014

Adjourned debate on second reading. 

(Continued from 28 October 2014.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:10): I have acknowledged that in the Magistrates Court Act section 7(2) makes provision for the process that is to prevail in the event that the Chief Magistrate is absent from his or her duties, namely the provision for the Deputy Chief Magistrate to assume those duties of office. I had left this previous debate on the basis that there is specific provision in the Magistrates Court Act for dealing with those absences, as distinct from the silence that prevailed in respect of the District Court Act and the Supreme Court Act as to what would happen in the event that the Chief Judge or Chief Justice were not available for their duties. Those acts were silent on that provision and the practice, as I understand it, prior to amendments that we dealt with, I think, last year, was that the senior puisne judge in those jurisdictions would be called upon to provide those services during the absence of the chief justice or chief judge respectively.

So a very different situation prevailed. They were silent, and it was reasonable in those circumstances for the government to bring to this parliament amendments to those acts to make provision for what the practice was to be in the future. The government's position on this amendment that they bring in respect of the Magistrates Court Act is to say:  

The aim of this proposal is to bring certainty to the Magistrates Court hierarchy in the prolonged absence of the Chief Magistrate.  

It goes on to explain that there had been amendments to the District Court and Supreme Court acts, which I have just traversed, and to give the explanation that section 7 of the Magistrates Court Act makes the provision, as I have also identified. It goes on to say:  

In the Government's view, this provision is adequate for certain short term absences, that is, where the chief Magistrate may be absent from duty for a specified and limited period of time. However, to provide more certainty in circumstances where the absence of the Chief Magistrate may be indeterminable, it would be prudent to insert in the Magistrates Act an equivalent provision to section 10 of the Supreme Court Act and section 11AA of the District Court Act for the appointment of an Acting Chief Magistrate if the Chief Magistrate is absent, or for any reason, is unable for the time being to carry out the duties of the office.  

That is the position of the government. That is their justification for coming here in this portfolio bill and adding in a new regime that is to apply for the absence of the Chief Magistrate of the Magistrates Court.  

Firstly, we say, largely for reasons I have already outlined, that the District Court and Supreme Court circumstances are distinguishable. They were; there was a justification for bringing those matters to the parliament, but the Magistrates Court on the other hand, under their act, already has a very clear position—a very clear position. It raises the question of: what is the real purpose of the government bringing this amendment to us for approval? 

In considering this matter, I think the parliament needs to be refreshed and I think the Attorney-General certainly needs to be refreshed on the important principles surrounding judicial independence and the essentiality and significance of that in not only our country's history but all civilised democracies in the world. Article 10 of the Universal Declaration of Human Rights affirms, and I quote:  

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.  

I also have Article 14.1 of the International Covenant on Civil and Political Rights, ratified by Australia, which provides:  

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.  

It is significant to say that of the many academic discussions and legal interpretations, when we talk about the requirement to have judicial independence, it is more than simply a case of saying the judiciary must be independent in the determinations which in our system are made by the courts. In other words, that the actual decisions that are made are independent from influence and threat or fear or favour and the like; that it does go beyond that.  

There has been much discussion because of the advent of expansion of judicial determinations and interpretations going beyond our traditional court system to now what is a myriad of tribunals that have been established over a long period of time and which, obviously, provide an important adjunct to the formal courts that we have. I think it is fair to say that whether it is a court or a tribunal, this message is clear and permeates that position.  

It is also important that we remind ourselves of what I think has become an international sport of sacking judges when prevailing governments or dictatorships do not like the decisions that judicial officers make. The most impressive to me, at the time, was the sacking of the entire Supreme Court in Pakistan, which was a shameful act of the government of the day. The world responded with international condemnation of that act. Indeed, a number of those dismissed judges of their superior court travelled the world to send the message that was very important to countries that signed up to judicial independence and the importance of the rule of law and the separation of the judiciary from influence or interference by executive or, indeed, the parliament.  

You would think you would be safe in Australia. The most recent case, actually, was one in Australia, and I now talk about the dismissal of the Hon. Geoff Eames, as the Chief Justice, who was to have a role in Nauru. I raise this because of the extraordinary response from the Australian Labor Party and, indeed, many people around Australia at the time when, on 19 January of this year, the Nauru government removed from office and deported the Resident Magistrate, who was also the Supreme Court Registrar, Mr Peter Law.  In removing him, action was then taken at an executive level to replace him with a solicitor who was flown in from Melbourne. The federal government, newly elected, came under some criticism in respect of the injunctions that were then made in Nauru,
which were ignored, and Mr Law was deported some days later in January this year. The Nauru government had effectively removed him, and Chief Justice Geoff Eames, who is resident in Melbourne, was then called in to attempt to deal with the matter, and his visa was withdrawn and he was unable to fly.  

I suppose, to some extent, that issue has now been resolved, but it ought to remind us—and I make this statement that will probably be seen to be unsympathetic to the views of the foreign minister and other ministers in the Abbott government at the time, but that does not deter me—that it is very important that the rule of law is not only recognised but is followed. Implicit in that is the importance of ensuring that we do not invoke some fear or expectation of favour for those who are undertaking judicial duties in our courts and, indeed, in our tribunals, that they would be influenced by an attorneygeneral, a government, or a particular public policy which is attempting to be invoked to cause some influence or interference. That rule of law is important.  

I conclude by saying that in that regard we have provision for the Supreme Court in particular to apply equally international statements to the removal of judicial officers. In accordance with those principles no judicial officer may be removed from office without good reason and without the opportunity to contest any allegations pursuant to a transparent process in accordance with the law. It is fair to say that in relation to the Law/Eames case earlier this year, unsurprisingly they felt aggrieved and accused the whole process, in particular the Nauru government, of blatantly denying those principles which, of course, are at the heart of our democracy.  

I do not want to labour the point, but I hope that the Attorney-General understands how seriously we treat the adherence to that principle and the recognition of it. Any weakening or undermining of it should be categorically rejected. If he, after being refreshed and reminded of that responsibility is the first law officer of the state, wants to progress with that part of his bill, then it will be a sorry day. I want to outline the facts in respect of the amendment that we are being asked to consider, remembering the rule of law and the principles that we have to apply not only deals with dismissal, or the threat of dismissal, if a judicial officer does not do what a prevailing executive government wants but also denies them the opportunity to make a contribution to the debate if there is going to be some edict in relation to it.  

Secondly, these aspects of exclusion from a higher duty, which is the subject of this amendment, or any other aspect that would tamper with or intimidate someone who is in judicial office into complying with what they think the government wants, are totally unacceptable. I want to recount the facts as we see them.  

Firstly, the current Chief Magistrate, Ms Bolton (who I think is universally regarded in her office) has, for personal reasons, given notice that she will need extended leave for an indefinite period from her position. We totally respect that and there is absolutely no point, nor do I intend, making any further statement about the reasons for that. We entirely accept them, and we do not, in any way, reflect on her notice in this regard as being of any influence in what the government have now decided they are going to do about it, or use for their own purpose.  Secondly, Dr Andrew Cannon is the current Deputy Chief Magistrate of the Magistrates Court and has been in that office for a number of years. He has been a magistrate for many years and has undertaken the duties of acting chief magistrate for months at a time when the then chief magistrate was unavailable to carry out her duties for another reason.  

Ms Redmond: And, similarly, highly regarded.  

Ms CHAPMAN: And, similarly, highly regarded as the member for Heysen points out. I want that to be resonating in the minds of our members here when they are then asked to consider voting on this part of the bill.  

The third fact is that Dr Andrew Cannon was a victim of defamatory statements in the public arena by the former attorney-general. I do not need to traverse those; they are well known, and they are part of litigation in another court. Dr Cannon was carrying out his duties, and in the course of carrying out those duties he made a decision which obviously inflamed the former attorney because he did not agree with it, and he had some statements to make about it which were defamatory.  

Fourthly, Dr Cannon successfully sued the former attorney-general for defamation and was granted a substantial payment as a result of that. Again, I do not need to traverse the detail of it, but obviously the taxpayer had to pick up the bill, which is not unusual in litigation because it is fair to say that the former attorney is a veteran when it comes to defamation proceedings. He is usually the plaintiff or the applicant in those cases, and I do not need to go on and traverse the success or otherwise of that. Let me just say that he is a veteran, so it is no mean feat for Dr Cannon to have won that. Nevertheless, that is a fact.  

It is also a fact that in recent times this government moved to effectively remove Dr Cannon from his position as magistrate by reducing the retirement age for magistrates from 70 to 65—they introduced a bill into this parliament months before Dr Cannon was to turn 65. The whole world is moving for later retirement—including the government in the WorkCover legislation in the Return to Work Bill which will now follow the federal initiatives. But no—they introduced legislation in a clear attempt to remove Dr Cannon from his office.  

They did not have the courage to try to present or argue a case that for some reason he was not fit for office; they were going to get rid of him by reducing the retirement age. The member for Heysen and others on this side of the house said that we will not accept that; we will stand clear and firm in our utter rejection of the attempt by the executive to come to the parliament, having not exercised their own courage, and try to get our blessing, our approval, to dismiss this person from office based on age. It was a disgraceful attack and, fortunately, in the end the Attorney-General backed off and that was not pursued and Dr Cannon remained in office. It was utterly rejected by this side of the house so, when the government came into this parliament with a bill to sever, effectively, Dr Cannon's automatically assuming the role of Chief Magistrate during a sustained period of absence that was anticipated by the Chief Magistrate, we smelt a rat.  

It is really concerning, because the Attorney-General should be aware that, first, we are not fools on this side of the house. We will not just have something tacked onto the end of a piece of legislation which he brings into the parliament to deal with 'minor errors, omissions and other deficiencies'. What a lot of rot. This is a major reform that
he has tacked onto his legislation in the hope that we would not notice, perhaps: I do not know. But, it certainly caught our attention.  

But let me tell members who else's attention it has caught. It has caught the attention and the utter dismay of members across the legal profession and the judiciary. I am not here to name people—I am not going to be doing that—but what I will say is I have had (as I am sure other members have) magistrates, senior members of the bar, members of organisations representing lawyers and other members of the legal profession roundly condemn this action by the government to attempt to undermine not only the rule of law but, in this case, a direct and targeted attack on one individual.  

I do not know what Dr Cannon has done in life (other than successfully sue the former attorney-general) that should incur the wrath of the government so that they are absolutely outraged, but I can guess why they have come up with the next charge, because the other thing the profession is outraged about is that this will, of course, if passed, allow the government to put in someone they think is going to be more compliant, perhaps, or more accommodating at the meetings of the chiefs of the courts and the Attorney-General about what they want.  

The Attorney-General, of course, does and should meet with the Chief Justice of the Supreme Court, the Chief Judge of the District Court and the Chief Magistrate to be advised from their senior positions for the purposes of considering future conduct of their courts and, also, rules that the judges may promulgate. So it is important that they have a role, and a constructive role, in working with the government in respect of those matters. The only one who is not the captain's pick (the Attorney's pick) in that role for a sustained period of time is the Chief Magistrate, who is now going to be on leave and, if the rules were invoked, under the current law Dr Cannon would be sitting in that forum.  

So, what does the Attorney-General do? He brings in this amendment, and who is waiting in the wings? Who is out there in the list now who has caught the attention of the Attorney as a logical successor, a logical person to be invoked into that role, perhaps for a year or two years—who knows? The Deputy Speaker looks with anticipation. I think still the most recent appointment to the magistracy was the appointment recently, of course, sponsored by the Attorney, of Mr Nick Alexandrides. Mr Alexandrides would be well known to most members here in the parliament. He was the former chief of staff to premier Rann, and I do not want to reflect on his capacity. Others will have a view on that. I have a view and I do not need to repeat that to the parliament.  

He was appointed. He was legally qualified for that position and was appointed, and presented by the government as suitable. Guess what? The profession, and other senior people in the judiciary, have woken up to the government's plot here and that is, of course, to put in one of their own. Obviously, they are sceptical about whether that is going to be Mr Alexandrides. It may be someone else, because we have a number of magistrates, the Attorney intends to slot in if this piece of legislation goes through.  Our side of the house will not have the rule of law undermined. Our side of the house will not agree to a change of legislation which is totally unjustified and distinguishable from the District Court Act and Supreme Court Act amendments which preceded it last
year. We will not be party to a partisan appointment of anyone, whether it is Mr Alexandrides or anyone else, in those circumstances. The very act of the Attorney trying to tack on this amendment under the Attorney-General's portfolio bill exposes the clear intention—  

Ms Redmond: Conniving.  

Ms CHAPMAN: —and the conniving—absolutely! Good word, member for Heysen— conduct of the government. If the Attorney-General has any shred of decency, as the first law officer of this state, he will pull that amendment to his bill from the parliament. In the absence of there being any justified basis for it, in the circumstance where it is open to abuse by this Attorney-General, or indeed any other attorney-general who might follow, we say that that should be rejected.  

The second area of controversy about this bill, which I am happy to have a bit more to say about in committee but place on the record, is the proposal to allow for temporary prohibited weapons class exemptions. This is an amendment that is proposed to the Summary Offences Act to allow for certain exemptions for use of prohibited weapons. As members would probably know, the Summary Offences Act obviously prohibits a whole list of prohibited weapons. That list has been expanded over the years, certainly in the time I have been here in this parliament.  

There is provision under the current act for certain classes to be exempt, including organisations such as the Freemasons and the Scottish historical groups, so that for certain activities they are exempt and able to have in their possession, put on display, use for a march or a parade, for example, certain things that would otherwise be prohibited. The amendment here is necessary to allow for an exemption of up to one month to be used on an urgent basis for, as he says, 'a festival or an event'.  

The current position, as I understand it, is that an application can be made for a special occasion and it goes out to consultation with the police and other stakeholders, depending on the relevance to that, for advice as to security and other aspects, and it is open to the Attorney to grant an exemption for the purposes of some display or the like. That can happen now. The Attorney is asking this parliament to give him the right to exempt a class of persons from the offence of possessing, using, manufacturing, selling, distributing, supplying or otherwise dealing with a prohibited weapon for up to a month. What for?  

Unless we are going to have an arms convention in the newly refurbished Convention Centre in 2015 that is going to go for two weeks and we do not know about it, and he wants to have some special capacity to give them some exemption, why are we being asked in this parliament to give that sort of power to the Attorney-General? I have asked that question, and I thank members of staff from his office for providing a briefing. I have a letter back from the Attorney-General and, guess what? He just repeats the same stuff that is in the second reading explanation.  It is just a complete whitewash of any detail of any justification for this to be imposed. It is not as though the Attorney-General has not and could have offered a confidential briefing if there was some special activity that was going to be coming forward that somehow or other needed to be secret or whatever. He could have offered a confidential briefing. We do that quite often in this area of portfolio responsibility, and I receive it and I have complied with that when it is appropriate.  

There has not been a shred of extra information to justify the imposition of this, and not any basis, apart from a festival or event, which is repeated in the correspondence, as to why on earth it would ever be necessary for a minister to have the power to temporarily exempt a class of persons to manufacture, sell, distribute or supply a prohibited weapon. For goodness sake! Are we going to be setting up some arms factory in this state, some sort of temporary provision in case we are invaded with Ebola? Who knows?  

I just make the point that in an environment where the government is out on a daily basis providing sympathetic support to the exclusion of guns in our community that are used in circumstances where we have the grotesque outcome of people being seriously injured or wounded by guns or knives in an environment where they are seeking to make it accessory to murder with respect to the provision of a firearm.  

They are asking us in the parliament, in that envelope of concern for the community, for the Attorney-General himself to have power to have arms out there and exempt for up to a month, including to sell or manufacture, and it is just outrageous. I think that it is insulting to this parliament that they give us this infinitesimal bit of information, which provides no justification whatsoever for such an expanded power. We roundly condemn that initiative by the government.  

I think that the Attorney-General needs to give some explanation to the people of South Australia as to why he has even come into this parliament with this legislation, particularly in light of recent events—why he has not given notice that he will be withdrawing the requirement for that, giving some reassurance to the public of South Australia that he is genuinely concerned for the safety of South Australians and that he will not be proceeding with this type of legislation. With those few comments, I look forward to the committee stage.