STATUTES AMENDMENT (JUDICIAL REGISTRARS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 October 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (11:39): I rise to speak on the Statutes Amendment (Judicial Registrars) Bill 2016 and indicate that I will be proposing amendments which will provide, in the alternative, an option for the government to consider. I also note that the Attorney-General has provided copies of foreshadowed amendments and a summary explanation of them in the last couple of days, and I have reviewed those and will be consenting to the same.

Essentially, the bill—which amends our District Court Act, Magistrates Court Act, Oaths Act, Supreme Court Act and Youth Court Act—is to accommodate a new judicial office in each of the Supreme, District, Magistrates and Youth courts to allow for the appointment of a new judicial registrar. We have been provided with a briefing—thank you—from the Attorney-General's Department, and have been advised that the background to this has come from former chief magistrate Judge Bolton to appoint a judicial registrar in the Magistrates Court. The idea has been extended in this bill not just to that court but also to the three superior courts.

The information provided by the Attorney most recently confirms that and, although I have not been provided with her letter of request to consider it, it is to be noted that whilst she recommended there was an opportunity to have the office of a judicial registrar in her court, she considered it should be subject to appropriate limitations and she had not specifically identified what the functions of the judicial registrar might be in the Magistrates Court.

So, it is relevant—and again I thank officers from the Attorney-General's Department—that if one is to consider the appointment of a judicial registrar, what is the situation that this office enjoys in other jurisdictions—either commonwealth or other states and territories? What are the terms of their appointment, functions, powers and the like? Probably most importantly, what restrictions would there be on that office?

In that regard, again I confirm that the Attorney-General's Department, under letter from the Attorney-General, has provided the summary of jurisdictions. There is no reference in it to Western Australia, I might add, so I can only assume at this point that, other than in the Western Australian division of the Family Court of Australia, they do not actually have judicial registrars in their state courts. Nevertheless, a comprehensive list of what applies in other jurisdictions was provided.

At first blush, when one looks at the bill I think it is fair to say, given the extent of the powers proposed under this regime, that it is not unreasonable to assume that this is the government's cheap option: how do they deal with outstanding judgements, how do they get rid of the disastrously long lists of people waiting to have trials, particularly in our District Court in South Australia? I still think that is a pretty fair assessment, given the extent of responsibility proposed under this bill for judicial registrars in each of the proposed four courts. That does not necessarily mean it is not a good idea or that there is an opportunity for the office of judicial registrar, which is cheaper than a judge to appoint, and provide for both during their employment and on their death in terms of entitlements for widows and the like.

There are also a number of duties in the administrative area where they can provide support to the progress of matters in the courts which are reasonably to be in their area of responsibility and which do not necessarily require the consideration of a judge. Usually, these are in the areas where a consent has been reached between the parties in dispute, and it is the recording of final orders to complete a matter, to attend to the distribution and allocation of trials and other administrative duties, such as operating as a mediator or dealing with the conciliation generally and proper advancement of cases through the courts in other than contested disputes.

There are a lot of things that judicial registrars do in other jurisdictions which quite reasonably could be undertaken and which could still assist this government in what has been, unfortunately, a major blowout in the timely administration of justice in this state. With all the will in the world of the Chief Justice as the head of the Courts Administration Authority, unless there are appropriate resources, modern equipment and adequate facilities in which to work, that is a very difficult ask.

I am not going to repeat the litany of areas of deficiency where I think the government has failed in this area, but I will say this: if you do not operate in a reasonable environment to actually conduct the administration of justice and have a decent court facility in which you can properly fit advanced electronic equipment and IT, which is in the modern era and not have to try to retrofit buildings that were built two centuries ago, then you have a chance of having a decent justice system.

If you do not have enough judges to actually administer work, and if vacancies are not filled, then there has to be some work done to try to plug the gap. To some degree, that is what this bill does. This bill provides a cheaper version of someone in each of these courts to be able to do some of that work which, on the face of it, will free up judges to do other matters.

The reason I do not think the government has been entirely bona fide about the appointment of these people is that, if they were genuine in saying, 'We respect the judicial officers who are there as judges and acknowledge that those persons have a reasonable entitlement,' particularly as they are going to be asked to deal with serious matters and contested issues and not just bring in a cheap option to do that, then they would have limited the areas of responsibility that would be available and the workload to be undertaken by these new judicial registrars, but they have not. They have brought in the cheap option under a proposal to do all the work that judges do.

I think that is very telling of the government's disrespect for the important positions that are undertaken. If they come to this place and say, 'There are judicial registrars in a number of other jurisdictions around the country,' then they would have at least followed suit. We have just finished debating a bill where we talk about bringing the Solicitor-General's terms of appointment into line with other jurisdictions, yet it seems to me that when the government first floated this bill and sought submissions there was wild and consistent rejection of some of the ambit positions that the government put.

It has been reined back a bit, but I suggest, if the government were genuine in saying, 'We are looking around the country as to what other jurisdictions have done and we are taking the best from it and we are going to create this position here,' then they would have done so in a fixedterm position without requiring that the person in this office should deal with contested matters or be in a position where they are dealing with contempt or imprisonment matters. That would have been genuinely in line with the rest of the country.

If we were to look at other jurisdictions, and I think it is reasonable that we do for the purposes of my claim in this regard, we should look at the Family Court of Australia, which has had the positions of judicial registrars for decades which, I suggest, work very well. They also have a federal jurisdiction which provides for circuit judges and they have registrars. They do not have masters, as we have in our Supreme Court, but they have a Chief Justice, they have judges, they have a circuit court judge and judges of their circuit court, and they have judicial registrars and registrars, and they all undertake important work.

What is important, for the purpose of this exercise, is that those judicial registrars cannot do a number of things. They cannot deal with children who are taken out of the country. They cannot deal with transfer of cases. They cannot deal with applications for medical procedures which, sadly, often deal with applications for sterilisation of people with intellectual disabilities and the like. They cannot deal with property matters that are over $2 million in value and obviously they cannot deal with contempt matters and declarations of vexatious litigants and the like. So, there are a number of areas which are kept exclusively for judges. I think it is fair to say that those areas are at the sharp end of the pencil, being the more serious of matters.

They can deal with some contested matters in the property sense, as I say, at a lower level and they can deal with disputes in relation to the residence and contact arrangements for children and the like. They can deal with child maintenance orders and so on. They have a certain area of jurisdiction, but they are not judges. If that were a jurisdiction to be followed, then we would certainly have thought that was one that had the most experience and one that could have been consistently applied.

If we go to the New South Wales jurisdictions, their judicial registrars do not and cannot deal with criminal jurisdiction matters, and they cannot deal with contempt matters. The Northern Territory has the Work Health Court of the Northern Territory which, I am advised by the department, has limitations on work that they can do. In Queensland, similarly, there are significant limitations on the powers for the judicial registrars in both their Land Court and Magistrates Court.

If the government says, 'We want to be able to appoint these people in our courts; they can do useful work,' then I suggest to the government that they can have two options. They can either appoint judicial registrars as tenured appointments and allow them to do contested matters, or they can have a fixed term of appointment and only deal with uncontested matters, as a restriction on the work that they do. As I have acknowledged, that will assist in the administration and, hopefully, the smoother operation of each of these courts, but it should not be extended to doing contested work or dealing with criminal matters involving imprisonment. Those are the two options, and we suggest that the government should elect one or the other.

I have indicated that we will be proposing amendments in both those terms. Both will commence in clause 11, and I propose to move the first of the tabled amendments as a test provision. If the government does not elect either in full, the amendments will be pursued in another place. I only mention that because of the way in which I propose to move only the amendment on each alternate as amendment No. 1 and by way of explanation, not by way of threat, of what we will be doing in another place.

Why is it so important for the judicial officers to be thoroughly independent? I mentioned this in the preceding bill, and I will repeat it because it is even more critical in this bill. We have a separation of powers, a fundamental principle. I can remember, in dealing in this place with the celebration of the anniversary of the Magna Carta, setting out the importance of the separation of powers. It is a matter I also raised at the recent Australian Bar Association conference in Melbourne, that is, recognising that, when we have the appointment of judges and judicial officers to deal with contested matters, we need to appreciate that they are going to be determining matters to which the Crown, the State of South Australia and the government or its departments are a party.

Obviously, in criminal matters, the Crown is a party to all of them because it has the exclusive prosecuting role—either through the DPP, sometimes through the police, sometimes through agencies such as the Environment Protection Authority and the like—to prosecute these matters on behalf of the people of South Australia. So, the Crown is a party. Secondly, it is a party in a whole area of administrative determinations that are under review in a number of our courts, some of which have recently been brought in under the new South Australian SACAT model to deal with, but others are still left in independent tribunals and courts.

Third (if I can put them into three large categories) is the number of cases in the civil area of jurisdiction in our courts in which the government or one of its departments or agencies is either the plaintiff or the respondent. Frankly, I was staggered to read a letter from the AttorneyGeneral, received in the last couple of months in which he answered a question I had asked him a year ago; that is: how many active civil cases are there in South Australia to which the government or its departments or agencies are a party? The answer was 800.

I thanked him for the answer—better late than never—but it was staggering to me that we have a David and Goliath situation in South Australia in so much of our litigation in our civil courts to which the government is a party. I get used to it because since I have been in here every time I have asked for a contentious document under freedom of information it seems that I am whisked off to the District Court to appeal against an Ombudsman's direction to tell the government or one of its agencies to give me a document.

Nevertheless, I was staggered to see that level of litigation going on, and that is outside of the criminal matters and outside of the criminal compensation matters. I hate to think what it is to date. Some of them, of course, are huge and in the public profile, like the litigation that the state government has taken against SA Health Partners with respect to the build of the new Royal Adelaide Hospital—the most expensive building in the world, apparently. Nevertheless, under a notice of breach, proceedings were instituted and there are cross applications going on in those proceedings for breach in respect of claims against the government.

We have massive litigation like that involving an army of lawyers and counsel who are battling it out between government and a corporate joint venture arrangement over taxpayers' money being spent in every level, not just to build the building, but now to fight over it while it sits down there with its lights on and no patients. They are the really public ones that people read about, but there is also a whole lot of other litigation going on, in which the government is supposed to act as a model litigant and is also in dispute with citizens or entities in South Australia.

I am very concerned when the government comes along to the parliament, in this case via the Attorney-General, to present the appointment of judicial registrars in each of its courts, which is going to include a power to hear contested matters, of which it is a party in hundreds. I am very concerned, because if ever there were a situation where the rule of law should apply, the separation of powers should apply, and the independence of the judiciary should apply, it is in the circumstances where the government has an interest in proceedings before a judge, or, in this case, a judicial registrar who is going to come up for reappointment at the end of what is now to be a seven-year term proposed in this legislation. I am very concerned, and the people of South Australia should be concerned. This is not just a question of looking at this at first blush and seeing whether the government is just trying to deal with the chaos in its courts by having a cheap level of judges be appointed: it is much more serious than that. It is much more serious because the government is asking us to support the appointment of a new regime of judicial officers, namely, judicial registrars, who will be hearing contested cases to which they are a party, and those judicial officers, if they want reappointment at the end of their seven-year term, will need to go back to present, obviously, for consideration by the Attorney-General.

That is completely unacceptable to us on this side of the house. It places those judicial officers in a position where they may feel under some pressure, if they want to keep their job, not to upset the government. It may be that they would not give a certain judgement—that is a possibility—that might upset or anger the government. It may be that they do make a finding against the government in a certain case, but they may not want to publish reasons which might humiliate or upset or anger the government.

That is not a situation that anybody in that position should be faced with. So, we say to the government that you can make a choice. If you want to have judicial registrars who work with certain functions in other jurisdictions in the country for the benefit of your state courts, which service our South Australians, then you have a choice: you either have a tenured position if you want them to do contested matters, or you have a fixed term if you want them to do administrative matters and not contested or contempt proceedings, or criminal proceedings involving imprisonment. That is the choice.

I do not think we could be fairer than that. If we were not to ask the parliament to think very carefully about this and reject the model that has been presented by the government, without one or other of these amendments, then we would be failing in our duty to support the government when they come up with good ideas and reject the government when they come up with bad ideas, or assist to amend ideas where they are on the right track but have badly deviated. We would be utterly failing in our duty to the parliament.

I ask those who are going to vote on this bill to consider that sincerely. The Attorney-General, I think, has dismissed these options already, but I might be surprised. It might be that he will accept our amendments. If he does not, then there will be another place to consider them. I note that, in the period of consultation on this matter, the government have heeded some advice I think from the Chief Justice, from the briefing that I received, that there should not be an appointment, reappointment or even terms of wages and the like set without the appointment being also supported by the chief of that court.

Whether it is the Chief Justice of the Supreme Court, the Chief Judge of the District Court, the Youth Court head or the Chief Magistrate, they need to provide their concurrence with the appointment, reappointment or terms of employment of the judicial registrar, and that is good. That is an important addition. It should have been there in the first place. The fact that the Attorney-General tried to get away with him making these appointments, in the circumstances that he is asking us to support, without that concurrence, I think is disgraceful; nevertheless, at least at the Chief Justice's request that has been changed.

The second issue considered was that even the five years that were floated should be extended out to seven years, so there has been some improvement, but this is not in a form that should be acceptable to this parliament at present. I leave members with the crucial tenet that judicial independence, and particularly the independence from the executive arm of government, is fundamental to what we believe in in this state, what we fight for and what permeates our constitution, and it ought not be offended by this type of legislation just for the government to clean up a mess.

In respect of the amendments the Attorney has also tabled and had foreshadowed in correspondence in recent days, my understanding is that amendments Nos 1, 2, 4 and 6 largely deal with administrative matters in respect of allowing for a judicial registrar to hold a compatible, non-judicial office in that relevant court. Secondly, amendment No. 3 tidies up the provision that a judicial registrar is a judicial officer of the Supreme Court and, in respect of amendment No. 5, the definition of 'registrar' does not include a judicial registrar. I think they purely deal with machinery, given the variation of provisions in those respective acts, so we will consent to those. With those comments, I am happy to move to the second reading.