STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) (NO. 2) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 March 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:14): I rise to contribute to the second reading of the Statutes Amendment (Attorney-General's Portfolio) (No. 2) Bill 2013. The bill follows legislation tabled last year, which has passed this house, to generally attend to amendments often described as the 'technical issues' that need to be mopped up when one looks at legislation on a regular basis. I do not doubt that this Attorney has, as other Attorneys have, an open file—probably now electronic—listing things that need to be remedied next time they are at the podium, when they bring to the attention of the parliament sometimes relatively minor matters which may not justify a bill in their own right but which, next time they are there, need to be considered.

The bill before us has been presented by the Attorney as just that: to make various amendments to rectify a number of outstanding technical issues that have been identified by affected agencies and interested parties in various acts committed to his portfolio responsibilities. Sometimes, of course, matters that need amendment foreshadow adverse application or effect to parties on an ongoing basis and we need to attend to those fairly quickly, but sometimes these matters can be dealt with together in a timely and responsible manner.

So, not surprisingly, we have amendments in a number of different acts. First, there are amendments to the Strata Titles Act 1988 and the Community Titles Act 1996 to provide that the articles of a strata corporation must not prevent an occupier of a unit who has a disability (as defined in the Equal Opportunity Act) from keeping an assistance animal or a therapeutic animal (as defined in the Equal Opportunity Act) that has been certified by the person's general practitioner as being required to assist that person as a consequence of their disability.

I am not aware of any circumstances in which somebody who might be blind or deaf and who has the use of a guide dog has been excluded from consideration for occupancy as a result of current legislation, and I do not think that it is claimed by the government that there has been some groundswell of abuse, I suppose, in this regard, to the extent of denying people that opportunity. I think what is more likely in the future is the issue of keeping a pet for medical purposes and in a number of other areas, such as the issue of the importance of companionship for an older person, for example, and the importance of retaining a longstanding pet where it provides some level of mental stability, strength and resilience.

I think these are the types of challenging boundaries which will more likely need to be considered in the future. I am sure members would know of cases where people have been denied the opportunity of having pets in nursing homes or residential villages, for example, where they are living in a new community where common facilities are shared. These include places of recreation and accommodation, including communal sitting rooms, dining rooms and recreational areas which attract the application of a number of new sets of rules to be imposed for the comfort and convenience of other people who are living in that same residential facility.

I think it is fair to say that particularly in nursing homes there is a high demand for this service and there is an opportunity for providers of the service (who are in the privileged position of having many applicants for the available space in their facilities) to say, 'Look, keeping an animal, even if it's been a longstanding companion and pet of the prospective resident, is something that would exclude you from that type of intensive accommodation.'

However, it is an area where obviously there can be very significant mental health and other adverse effects if the person is denied that companionship and the pet is either separated from them or, worse still from their point of view, euthanased. It is a confronting issue. I am not aware as to whether there have been some callous acts of exclusion or attempts to do that where we are trying to remedy the ill; we do not object to the government bringing it to the attention of the parliament but it seems as though this is to ensure that that does not happen in the strata title corporation community.

The second area is to clarify the statutory defence of child pornography offences, in particular to protect law enforcement and court officers acting in the course of their duties and in the context of education. There are a number of circumstances where persons acting in the course of their employment or in their professional undertakings enjoy the privilege of being able to breach the usual privacy requirements to enable them to provide training for fellow colleagues and the like.

Obviously, the medical profession generally has obligations of confidentiality but the information that is observed or learnings that a practitioner is able to achieve as a result of their practice can be imparted to those in a training session for the training of other professionals. The legal profession (of which I have been a member myself) is familiar with the strict requirements in respect of confidentiality between solicitor or barrister and client. Professional privilege about information which attaches for the protection of the client is one which is able to be relaxed for the purposes of training others. In continuing legal education courses it is common for legally trained people to express particulars of experience in relation to particular cases for the benefit of explaining the application or deficiencies in legislation.

Obviously, when those cases have reached the public arena and are the subject of judicial determination and there are public judgements, then they can be made available in the public arena. Nevertheless, many cases do not reach judicial determination, as the Speaker will be well aware—I think he has been involved in plenty of cases himself and he will know that. Sometimes they do not always end up in a public document, but it is important for members of the profession to be able to provide illustrations from their case histories for the purpose of the professional training of others. Here we have a situation which is not necessarily for professional training, as I have referred to, but court officers are of course privy to lots of information.

I am sure the Speaker would recall the days of discretion statements in the Supreme Court where it was possible for people who were seeking in those days a divorce—now called dissolutions of marriage—to ask the judge to receive a statement in confidence, usually to disclose some previous indiscretion which might have otherwise attracted a call for them to be identified as an adulterer or a bigamist.

They would have the opportunity to present to the judge the contents of their disclosure. The judge would read it and then seal it in an envelope and it would be kept in the file and in the records—and I will come to that example in a minute, because we are dealing with another amendment—but, in the course of all of this, it is quite possible that other members of the court would be privy to information that is otherwise for very select eyes only.

Here we have a situation where, in particular, child pornography offences and those involved in those cases have special protections, primarily designed to protect the child who is the victim or alleged victim of pornography offences and in those circumstances, if a police officer, a law enforcement person in the court or a court officer is privy to some information that is disclosed in the course of their duties or in the context of an educative role, they need to have some protection. The opposition has no objection to that.

I might say that, in relation to protection for members of SAPOL or others who have expressed concern about protection and who do not want to be in a situation where they unwittingly frustrate legislation or proper law enforcement and child protection as a result of disclosure, they needed that protection and we accept that.

The bill also amends the Criminal Law (Sentencing) Act 1988 to clarify ministerial responsibility. There is also provision for publication of records of the courts after 100 years, so there is provision in this bill to amend the Supreme Court Act 1935, the District Court Act 1991 and the Magistrates Court Act 1991 to facilitate that.

I think this is a welcome initiative for those who are interested in the history of the courts and cases in them. South Australia has a rich history and its legal history, I think, is under-researched and under-published on. I have a sort of quirky interest in the history of the state in lots of different areas—political, particularly—but in the legal world I think there is unfortunately no apparent significant interest in research that goes with some of our history.

Some of the hangings and some of the famous murder cases in this state, particularly of women, are quite notorious. It would be, I think, really important for historians in South Australia to have access to these records to be able to provide some insight into the early South Australian settlement life, some of which was rich in its tapestry of advances for the state and some of which confirms the abhorrent hardship that many early settlers undertook, and no less of that is in the stories and cases about those who faced court action, our mental health institutions or our prisons, or a combination of all three. I hope that the historians of our state will find this a wealth of information to assist them in their research, and it comes with the endorsement of the opposition.

I thank the Friends of South Australia's Archives, who have recommended this advance, and I understand it will also enable the storage problems to be somewhat more relieved. There is also a provision to amend the Evidence Act 1929 to allow the maintenance of audiovisual records in electronic files to be dictated by the rules of the court, within which it is to be clarified that staff of the Courts Administration Authority can carry out the duties whilst adhering to the rules of the relevant court. This really is simply an advance in technology and the legislation that we have protecting the records in this form to be followed, and the opposition endorses the same.

There is also a provision in this basket of goodies to amend the Police (Complaints and Disciplinary Proceedings) Act 1985 to authorise preliminary investigations and to refuse to investigate a complaint. We are about to embark on a new era in relation to the investigation of people in public office with the establishment of the ICAC in this state, and it is expected to commence its operations I think on 1 September this year. We welcome that initiative. We expect that, in itself, will relieve some agencies from some of the work that they currently undertake. It is probably its establishment, and the other statutory bodies that will go with it, that gives me some comfort that this amendment will not deprive people of the opportunity to have some of their matters looked into. In short, with the ICAC Commissioner and the Office of Public Integrity, there will be a whole new regime available to those who have concerns.

Police officers in South Australia have their own levels of accountability with which they are to comply, and that is through the Police (Complaints and Disciplinary Proceedings) Act 1985. Obviously police complaints is an important body to oversee. As a local member of parliament, one of the things I find most common about police complaints is when people feel that they have not been apprised of evidence to suggest that their complaint has actually had any reasonable consideration. So, on the face of it, when I first saw this amendment, which was to refuse the right to investigate a complaint, it filled me with some concern, because one thing members of the public do not tolerate is when they feel that they are being completely stonewalled and that nobody has listened to their complaint, or that it has been dismissed in an arbitrary way.

So, when we have a structure which in this instance is designed to give the public some confidence in the police force to ensure that if there is a genuine complaint it will receive due consideration, and then we see an amendment on top of that which says, 'Well, this body is entitled to simply dismiss it', it is, on the face of it, concerning. It is reasonable for anybody vested with the responsibility of oversight to have the capacity to identify a frivolous or vexatious complaint and to put it through a process which I suppose has the effect of a summary dismissal. That is reasonable, and I think it really is applied, whether in our courts or lots of other types of entities, where the person in charge can say, 'Look, I clearly find that this is a serial pest who is filing complaints, or a completely unworthy prayer for relief in their summons or complaint,' and that it should receive a summary dismissal.

Usually with those processes there is an opportunity, through an appeal process, to go to a higher form, but it places another hurdle on someone who might be mischievous or just generally wasting people's time and gives us a chance to weed those out. The advent of the new structure—in particular the Office of Public Integrity here—I think will provide some safeguard for that.

If one listens to the complaints that come into our electoral offices, I think there are already cases where people feel as though their complaint has not received sufficient investigation, and I suppose this formalises to some degree what is already occurring. There is also a provision to correct a drafting error in the Graffiti Control (Miscellaneous) Amendment Act 2013 and to further clarify the operation of section 7(5) of the Graffiti Control Act 2001 in respect of proof of identity to be produced by an authorised person.

We do not have any examples from the Attorney as to whether that has actually produced any mischief or unfair denial of an authorised person's capacity to undertake their duties as a result of what currently applies and is being remedied here; nevertheless, that appears to be in order. We also have provision to amend the Summary Offences Act and the schedule of that act to correctly refer to schedule 1 of the act, and that is what I call a genuinely technical matter.

The final area of reform which is buried in the middle of this exercise of tidy-up is a provision to amend the District Court Act 1991 to accord the Chief Judge of the District Court—

The SPEAKER: We need one, don't we?

Ms CHAPMAN: —the status of a Supreme Court judge. This has attracted some interest. The Speaker, helpfully for a change, interjects to suggest that we need a chief judge—no disrespect. Unless you are a candidate, I will not be asking you not to make any further comment. As I understand it, the Chief Judge, His Honour Terry Worthington, is about to retire from the District Court, and I expect that in due course members will have an opportunity to express our appreciation to him for his longstanding service to the law and to the judiciary, in particular in the District Court, so I will not dwell on that here today. But it has not escaped our attention that he is about to retire, and obviously the Attorney-General is busy in his determination in finding a replacement. This amendment therefore comes at a rather curious time but, nevertheless, that in itself does not prevent the opposition from having a careful look at what is being proposed.

Members will be aware that under a previous statutory amendment bill we supported the government's initiative to allow for the Chief Magistrate to have the status of a District Court judge. We dealt with this at a lower level of the court positions, and that appears to have come with the support of the usual stakeholders. Although the Law Society at the time raised some question of potential conflict of interest, that has now been implemented.

What has been concerning to us is the suggestion by the Law Society of this initiative that perhaps this amendment is, in fact, to be a backdoor cost-cutting measure for the government. The second reading contribution says this:

Consistent with the Statutes Amendment (Court Efficiency Reforms) Act 2012, the District Court Act 1991 is amended to provide that a person appointed as the Chief Judge of the District Court will also be appointed as a Justice of the Supreme Court. As is the case with the Chief Magistrate, the responsibilities and workload of the position of Chief Judge are such that the holder is entitled to the status and conditions of a Justice of the Supreme Court. This will help ensure that the best candidates for this vital role are available. An existing Supreme Court judge might prove to be the most suitable candidate for the position of Chief Judge. Accordingly, the Bill allows a Justice of the Supreme Court to be assigned as the Chief Judge of the District Court.

I don't remember seeing that same language applied when we were considering the elevation of status of the Chief Magistrate to be a District Court judge. I do not know whether that statement by the Attorney-General is code for the fact, sir, that you're not going to get the job. But it does seem to highlight a new addition to the consideration of appointment of the new Chief Justice.

I do not suggest for one moment that any one current member of the Supreme Court would not make an excellent Chief Judge of the District Court if they were to undertake that responsibility. But it is a curious suggestion or a flagging of the opportunity for Attorneys-General to broaden the opportunity for candidates. If, in fact, it is the Attorney-General's view that for this appointment, or any subsequent appointment—and one that happens to be imminent—the candidature ought to be in the Supreme Court, I do not see any reason why, at present, it would preclude the Attorney from asking a member of the Supreme Court to actually take on that job. There is actually nothing stopping him from doing that.

What the Law Society has pointed out is that it may be some cost-cutting. What has occurred since this bill was introduced is that some consideration has been given to who makes up the Supreme Court in numbers at the moment and it would be interesting to know what is disclosed in the government's own reports in the sense of what is on government agency reports, both annual reports and on the website.

On the research undertaken in another place, I note the following references. Firstly, the Wikipedia page for the Supreme Court of South Australia states that the Supreme Court is made up of 'a chief justice and 12 other judges'. The entry does not provide any reference to that claim. However, the Supreme Court Act 1935 mentions the number of judges which can be appointed to the Supreme Court. The only reference to the number of judges in the act appears in section 7(1) which provides:

The court shall be constituted of the Chief Justice, the puisne judges and the masters appointed, and for the time being holding office, under this Act.

However, the most recent Judges' Annual Report (year ending 31 December 2011)—I doubt we are waiting for the latest one—published under section 16 of the act lists 13 justices of the Supreme Court, including the chief justice and two masters.

The most recent Courts Administration Authority Annual Report (2011-12) states that there were 13 justices of the Supreme Court, including the chief justice plus two masters. The Courts Administration Authority website only lists 12 justices of the Supreme Court plus two masters. A retirement may well have occurred but it is obviously not up-to-date. It seems that those who are currently working in the court comprise 12 justices. The website is still recording one that is out of date because there has been a retirement since and a replacement. Perhaps the Attorney can fix that up.

It raises some question of credibility of the Law Society's concern as to whether there is a budget cut opportunity here with this legislation rather than just expanding the pool which is already legally available to the Attorney to take advantage of those wise men and women in the Supreme Court in asking that they undertake the job as chief judge of the District Court. We were provided with a prompt briefing on the bill. Obviously there was an opportunity for some consultation, as I have indicated.

We urge the Attorney in future to allow for the opposition to have reasonable time for consultation. It has not been something that has been strong in the past but I place on the record that in recent briefings we have had more fulsome disclosure of submissions and we welcome that from the opposition so that we may properly consider the legislative reform agenda of the government. Where it is good, which it is occasionally, it gets our prompt support and where it is defective, we identify that and remedy it if possible and oppose it if it is simply going to add to the burden of South Australians. With that contribution, I indicate we will be supporting the bill and will not be going into committee.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (12:50): I thank the honourable member for her contribution. I appreciate the fact that the matter, at least in this place, will pass without any delay and that is obviously to the general good. The matter that I want to briefly address before I deal with a couple of amendments that have been filed relates to a letter the honourable member referred to from the Law Society of South Australia, which has recently decided to go into print very frequently. I met with them last night. It appears that some members of the society, or some members of some committees of the society, have spent a lot of their youth watching The X-Files and have some sort of conspiracy theory about where things might be going.

Ms Chapman interjecting:

The Hon. J.R. RAU: Pardon?

Ms Chapman: Be nice to the Law Society for a change.

The Hon. J.R. RAU: I was very nice to them last night and I enjoyed their company very much. I want to explain very clearly what the situation is in respect of the chief judge, and some of the remarks I make now will be equally applicable to the amendments, so I will not be repeating myself.

The situation in relation to the Senior Judge of the District Court is this: it is a very, very difficult job. It is, in fact—as you, Mr Speaker, would know better than most here—one of the most pivotal jobs in the whole justice system in South Australia because it is the leader of the main trial court, whose cooperation and assistance in very important matters is of great assistance to the court system and the government of the day in achieving efficiency outcomes which are, of course, very important.

That job carries with it a fair degree of administrative responsibility, so it is not simply a job that a particularly good lawyer would find a natural fit, because there is this large administrative component in the job. Therefore, the pool of people from whom one might usefully select an appropriate person is rather narrow. There are two places from where, traditionally, this person might have been drawn: one is the private profession—presumably the bar, though not necessarily—the other is an existing member of the court.

Ms Chapman interjecting:

The Hon. J.R. RAU: Indeed. The current senior judge, for example, was drawn from the body of the court, as indeed, I think, the previous senior judge was before him. It may be, however, that there is a member of the Supreme Court who has both the aptitude and the inclination to also do the job. In that circumstance, it should be possible for that person to be able to, whilst retaining their styled entitle as a justice of the Supreme Court, in effect, remove themselves from the jurisdiction of the Supreme Court and become the senior judge of the District Court without any disadvantage to their standing or other entitlements. The fact is that the senior judge of the District Court is paid and is in every respect treated the same as a puisne judge of the Supreme Court except for their title, which is that of 'judge so-and-so, senior judge' rather than 'justice so-and-so, Supreme Court judge'.

The purpose of this amendment is purely and simply to provide two opportunities. Firstly, if there were a Supreme Court judge who wished to discharge that function, it would be opportune for that person to be able to be moved. Secondly, there might be somebody in the profession who has their heart set on becoming a justice of the Supreme Court, who would also be really good at being the senior judge, who might for whatever reason prefer not to be the senior judge because they would rather hang out to become a justice of the Supreme Court. It would be a shame to lose the opportunity of attracting that person because of the different title, etc., that is associated with the position.

All of these are hypotheticals because none of them—I can tell the member for Bragg and other members of the parliament—are presently matters that are in progress. In short, can I say to the member for Bragg, this has nothing whatsoever to do with cost cutting in the Supreme Court—nothing whatsoever. In fact, I place on the record, as I said to the Law Society last night, that there is no way on this earth that the job of senior judge of the District Court is a part-time job—it is not a part time job.

So, the person who is doing that job, if they happen to be starting off life as a Supreme Court judge and then go across and become the senior judge of the District Court (while still retaining the title of Supreme Court judge), would be occupied full time in the District Court. They would have no time, other than for the very limited circumstances which are provided for in the legislation. For example, if the Supreme Court was having trouble convening a full bench for an appeal or there was some other peculiar individual circumstance, in that circumstance, and only that circumstance, whilst going through procedures which included, I believe, a gazettal, the Chief Justice of the Supreme Court could request the assistance of the senior judge/Supreme Court judge heading up the District Court to come and form part of a bench for the purposes of a particular appeal.

That is an anomaly which may or may not ever occur but it needs to be provided for because we need some flexibility for the Supreme Court to be able to convene itself, as required, in extreme and unusual circumstances. So, it has nothing to do with cost cutting. The situation is that this is not a part-time job. If there were a Supreme Court judge who wanted to move they would be moving for the purposes of moving. With those comments, could I quickly move the amendments that have been filed in my name?

The SPEAKER: It would be really good if we passed the second reading before we started to interfere with the clauses.

The Hon. J.R. RAU: Indeed, I think it would be very nice if we had the bill read a second time.

Bill read a second time.