Bills

Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2014.)

Mr TARZIA (Hartley) (12:01): I rise to resume my remarks in relation to the Statutes Amendment (Attorney-General's Portfolio) Bill 2014. As I mentioned, things are not always what they seem. We were told that the bill was introduced to remedy minor errors, omissions and other deficiencies; however, when we delve a bit deeper into this statutes amendment bill, we see that things are not always what they seem and that there is more to it. These reforms are, in some cases, much more serious than first presented.

I would like to address each of the bill's parts in turn; some parts I will support, others I simply cannot. In relation to the signing of death certificates, I understand it was the case that when the Burial and Cremation Act 2013 was passed it was discovered that two doctors were required before a cremation permit could be issued, one being the deceased's consulting doctor immediately before death. This amendment restores the position as applied under the previous Cremation Act, in that one doctor's signature is required. I have no problem with that amendment.

In relation to the second amendment, regarding child exploitation material, when you look at the amendment bill it is obvious that it modernises the definition of that and aims not only to broaden it but also to contemporise the description of certain conduct. I think it is important that, as elected members, we update bills to reflect changes in technology, and terminology for that matter, so I have no problem in also supporting that part of the bill.

With regard to the resentencing for subsequent cooperation with law enforcement agencies, under past reforms offenders are able to receive reduced sentences if they cooperate with the police and other agencies, and it could occur after an offender is sentenced and it may be some years later that they provided assistance. It was unclear whether sentencing rules that applied at the date of the offence or at the date of resentencing should apply.

This amendment provides for resentencing according to the law and the principles applicable at the time of the offence. As the member for Bragg alluded to, however, I would also seek details of some of these cases over the past, say, two or three years where we will see the benefit of this. I look forward to receiving some of those cases in due course.

With regard to the notification of suspension of interstate legal practitioners, again it was identified as being unclear whether a court is required to notify the authorities of an individual legal practitioner's suspension, and this amendment secures the same. Again, I have no problem with that part of the amended bill.

However, then we get to a juicier part in regard to the acting chief magistrate, and we have all seen the article in relation to this in The Advertiser on Tuesday 11 November. With all respect, it looks like the Attorney is looking at making his own 'Cannon' law, not the kind of canon law with one 'n' some of us may have abided by in the past, but one with two n's in this instance. I certainly cannot support what the Attorney is aiming to do here.

The government has introduced an amendment to the Magistrates Act that may stop someone acting as chief magistrate. If passed, it would enable the appointment of an acting chief magistrate, if the chief magistrate is absent, or for the most senior magistrate to fill the role until the vacancy is filled.

I understand that, at present, as Deputy Chief Magistrate, Dr Cannon automatically assumes the acting chief magistrate position, and he is obviously acting in that role while the Chief Magistrate is on leave. I understand that Dr Cannon has assumed that role on numerous occasions in the past and, from talking to people in the legal fraternity, I am also informed that he has been quite competent in that role. So, 'Why change the law?' is the question I have for the Attorney. I am very much looking forward—I think that it would be the highlight of my day—to hear his explanation as to why this is taking place.

One thing for sure is that I think that it is a dangerous path for the government to go down when they start interfering with the independence of the judiciary. We should not be interfering with that process. 'Where does the interference stop?' is a valid question. If you speak to lawyers, magistrates or members of the profession, they are also scared and worried about this course of action because where does it stop?

We have an example of a law that seems to be working. The member for Bragg has asked for examples of why this is not working, but we are yet to see why this has been put in place. It also seems to be hypocritical in relation to other laws this government has passed. We have heard from the member for Heysen especially in regard to another role where this is inconsistent. I conclude by saying that we simply cannot support it.

I am not suggesting that there is a vendetta out there but, if there is, we should not be occupying this house's time debating this course of change. It is simply not a good use of the house's time and not a good precedent to set. I simply cannot support that part of the amendment.

In relation to the temporary prohibited weapons class exemptions, again I seek some clarification in regard to the mischief, I suppose, the bill is trying to rectify. I am led to believe, on our queries so far, that we are yet to receive that clarification. I will support parts of the bill, but I cannot support all parts of the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (12:08): First of all, the good news: most of this appears to be reasonably uncontroversial, and I thank all members for their contribution. Secondly, on the matter of the weapons, just so that people understand what is going on, this is not a particular hobby of mine.

Indeed, some might regard this as slightly unusual, but it is the case that there are people who like to dress up as Confederate army officers or Union army officers; some of them even like dressing up as Sir Lancelot or doing re-creations of the Battle of Hastings and stuff like that. I personally have never been involved in this, so I am not speaking from any sort of personal anxiety about this matter, but I can tell members that there are some people for whom the annual re-enactment of the Battle of Hastings is a red-letter day. They spend a whole year preparing costumes, doing the ballot for who is going to be Harold. It is very—

Mr Gardner interjecting:

The Hon. J.R. RAU: Exactly. Obviously the position everyone wants to get is William, because William came out pretty well in that event. If I were ever to participate in this particular event I would want to be William, because I would know that at the end of the day things were going to be okay. However, there are people who do this and the fact is that, by and large, they are not bad people. They are just people for whom philately is not an appealing hobby.

It has been put to me that these people, who are about to re-enact the Battle of Hastings or the Eureka Stockade or the D-Day landing or some other thing—I cannot remember exactly what it was but, if I recall it correctly, these people were going to re-enact this thing on a big oval at Reynella; the member for Reynell may be able to help me with what group I am talking about here, and she is nodding so she knows what I mean—were confronted with the possibility of, part way through the Battle of Hastings, a series of sirens and blue flashing lights turning up. That would have been completely out of keeping; it would have made it look like Monty Python and the Holy Grail. It would have mucked up the day, and why would that have happened? It would have happened because they had these cutlasses or whatever, which were kept under lock and key and were validly held.

The purpose of this is simply that if you have a bunch of chaps (and usually it is chaps) who want to get out there and wear this gear, and run around and suchlike with gun smoke and stuff—or even without it—and they are not hurting anyone and are actually putting on a public spectacle, while they are out there and are behaving in a decent fashion, why should it be impossible for them to apply to be given a permit for that specific event so they can indulge their dream? Why should they not be able to live their dream? The member for Hartley is living his dream; he is sitting in the parliament. What about these people?

Ms Chapman: He doesn't need a permit for that.

The Hon. J.R. RAU: He does have a permit. He has—

Ms Chapman: He has 20,000 people who voted for him.

The Hon. J.R. RAU: No, he has got 200 people who made a mistake on their ballot paper who put him there. Anyway, I am happy to see you. The point is this: just because we, in this parliament, do not personally engage in these types of re-enactments does not mean that we—

Mr Gardner interjecting:

The Hon. J.R. RAU: Just because I do not engage in these particular types of re-enactments should not mean that good, law-abiding citizens, who are just putting on a bit of a spectacle (in fact, the member for Reynell may know, but I suspect families go and watch these things and have fairy floss and noodle salad and all that sort of stuff there), cannot.

That is the point, that these people can actually contact the Commissioner of Police and say, 'Look, here we are. We are the Battle of Hastings Society and we are out here doing a bit of stuff. We are only going to be on the oval up in Reynella on this particular day. We do not mind if you send the police up to have a look at this and make sure we stay nice and tidy, but do not pinch the whole lot of us just because we have a ball and chain or a mace or some other damn thing.'

Ms Chapman interjecting:

The Hon. J.R. RAU: Well, I am told that these people are at risk of being prosecuted. That is the only reason it is here. If members of the opposition wish to be curmudgeonly and stop these people from having their little ray of sunshine, that is a matter for them.

Ms Chapman: Not one letter.

The Hon. J.R. RAU: That is because these people mistakenly think that members of the opposition are supportive of them living the dream too. So, that is that one.

Now the other one, the one that has attracted all of the attention: I have mentioned this before in this place but I think I must mention it again. There are still some people who think that Elvis Presley is alive. There are some people who think the moon landing was filmed in Universal Studios. There are some people who live their lives like Fox Mulder. These people believe in conspiracies. These people are constantly looking around corners and moving away from shadows, but I want to allay their fears. What I am going to do is explain a few facts which should calm this whole thing down, I hope. The first thing is I would like to read from section 10 of the Supreme Court Act, which provides:

(1) If—

(a) the Chief Justice is absent or, for any reason, is unable for the time being to carry out the duties of the office; or

(b) the office of the Chief Justice becomes vacant,

the Governor may appoint a puisne judge of the court—

puisne judge, of course, not being a small judge but a judge other than the Chief Justice—

to be Acting Chief Justice until—

they return to duty or another person is appointed, as the case requires. That is section 10(1). I do not recall the X-Files being wheeled out when that particular provision came in. That is section 10 of the Supreme Court Act. Section 11AA, which incidentally I think was put in by the parliament not that long ago because we were confronted with a problem—

Ms Chapman interjecting:

The ACTING SPEAKER (Mr Odenwalder): The minister will not respond to interjections.

The Hon. J.R. RAU: No, I won't.

The ACTING SPEAKER (Mr Odenwalder): And the deputy leader will cease interjecting.

The Hon. J.R. RAU: That was a savage interjection to which I will not respond. The former chief judge of the District Court was either absent overseas or had retired, I cannot recall which, and there was an issue about who would be presiding over the court. It was discovered that there was a gap in the fabric of things, so 11AA was inserted. Member for Hartley, you are going to be calming right down after you have heard all of this, 11AA provides:

(1) If—

(a) the Chief Judge is absent or, for any reason, is unable for the time being to carry out the duties of the office; or

(b) the office of the Chief Judge becomes vacant,

the Governor may appoint a Judge to be Acting Chief Judge until—

(c) the Chief Judge returns to official duties; or

(d) a person is appointed to the office of the Chief Judge,

as the case requires.

No equivalent provision presently resides in the Magistrates Court Act. However, the proposed insertion of section 6B provides:

(1) If—

(a) the Chief Magistrate is absent or, for any reason, is unable for the time being to carry out the duties of the office; or

(b) the office of the Chief Magistrate becomes vacant,—

familiar words, but what we have done is we have removed the words 'chief judge' and we have put in 'chief magistrate'—

the Governor may appoint a magistrate to be Acting Chief Magistrate until…

blah, blah, blah. What we are doing is we are creating in the Magistrates Court an identical provision to the provision that applies in the Supreme Court and the District Court. So, there is nothing novel or weird about this.

The next point is: contrary to the X-Files sort of stuff that has been going on around the place, I have enjoyed a good working relationship with—I cannot remember Gillian whatever her name is—

Ms Chapman: Lois Lane.

The Hon. J.R. RAU: No, I am talking about the X-Files. What was her name?

Members interjecting:

The Hon. J.R. RAU: Scully, Agent Scully—Agent Scully over there, yes.

Ms Chapman: Actually, you wouldn't look bad in a dress.

The Hon. J.R. RAU: We might take that up afterwards, perhaps.

The ACTING SPEAKER (Mr Odenwalder): I think, Deputy Speaker, you are coming perilously close to misleading the house—sorry, deputy leader, I beg your pardon. I apologise to the Deputy Speaker in advance.

The Hon. J.R. RAU: As to Mr Cannon, can I say that he has now been acting in the role for a period of time due to the current illness of the Chief Magistrate. I have had several conversations with Mr Cannon. I have no complaint about the way he is discharging his duty and, on the basis that he is there for a longer period and continues to discharge his duty in the way he has to the present time, I am quite disinterested in disturbing the status quo.

Ms Chapman: I bet you are now.

The Hon. J.R. RAU: Why? Why would I have changed my mind?

Ms Chapman: I think it's pretty obvious, John.

The Hon. J.R. RAU: Is the member for Bragg saying that this particular issue is being agitated at the instigation of the Acting Chief Magistrate? Is that what the member for Bragg is saying?

Ms Chapman: You didn't even hear my contribution on this matter.

The Hon. J.R. RAU: Well, let me finish. Mr Cannon is not presented with any threat by reason of this. Furthermore, and even more concerning is that, whilst the Chief Magistrate is ill and if Mr Cannon were, for example, on leave or ill, what would we then do with the Magistrates Court? The answer is that we would rush this provision into the parliament. We would have to rush this through the parliament so that the Magistrates Court had a leader, because absent this they would just be sitting there, a bunch of leaderless magistrates, wondering what to do. Now, is that good? I do not think so.

Let's say Mr Cannon had taken long service leave, or whatever the appropriate title is for that, and he was off in Europe or wherever having a well-earned rest or studying something and, whilst he is away, the Chief Magistrate becomes ill. What then? Do we wait until he gets back? Do we ring him up and say, 'Sorry, cut your holiday short, come home'? I do not think so. What if Mr Cannon becomes unwell? What then? More particularly, this is not about Mr Cannon: it is about the Magistrates Court. Who here can foresee a circumstance in the future where we may not need to have resort to this, whether there is a deputy magistrate or not? Read my lips: this is not about Mr Cannon. This is about—

Mr Gardner: Remember the last time somebody said 'read my lips'?

The Hon. J.R. RAU: He was a president of the United States, I think, wasn't he? This is not about Mr Cannon: it is about the Magistrates Court. If this does not pass, at some point in the future, as sure as eggs, the situation will arise where the Deputy Chief Magistrate (if there is one at that time) is absent or sick and the Chief Magistrate is absent or sick at the same time. That will happen. It is a statistical—not probability—inevitability. I was quite good at maths, until grade 6. That is the situation. That is what this is about.

Member for Hartley, I hope those are words of comfort. I hope you can now feel happy that you are discharging a worthy function here in supporting the bill unamended.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

Clause 6.

Ms CHAPMAN: Congratulations, Madam Chair. I think this is the first bill we have done with your chairmanship and you are doing a great job so far.

The ACTING CHAIR (Ms Hildyard): Thank you very much.

Ms CHAPMAN: Clause 6 relates to the deletion of reference to 'pornography' in the Criminal Law Consolidation Act and proposes 'exploitation material' be its replacement. I have indicated in our contribution that this side of the house supports that. Our concern, Attorney, is the delay in the implementation of this (years) and that has been raised in our second reading contribution. Can you explain to the house why we are so far behind in relation to this legislation? We did review this matter in 2011, which was also Attorney-General's portfolio legislation, which was then dealt with in 2012. I am still puzzled as to why this matter has not been picked up and dealt with, as other jurisdictions have modernised some years before.

The Hon. J.R. RAU: I take that as meaning sort of cryptically that you are actually supporting what we are doing here.

Ms Chapman: I just said that.

The Hon. J.R. RAU: Okay, so it was just an opportunity to ask that question? Fair enough. It is a bit of a cheap shot, but fair enough.

Ms Chapman: I raised it in second reading.

The Hon. J.R. RAU: Sure—doesn't make it any better. The point is there are a number of things going on in the Attorney-General's Department. There is a large amount of legislation which needs to be dealt with. We have a process whereby we have these bills which are an amalgam of a number of tweakings in a whole bunch of other bills which, unless there is some overwhelming urgency for them, are allowed to accumulate as a package, if you like—a completely miscellaneous package—until there is enough in the package to warrant introduction as a bill. That is basically what has happened here.

There has been no mischief created in the world by this not having been done six months or 12 months ago. This is an appropriate place, time and way to do it. It would not realistically have been appropriate to be a stand-alone proposition, in my view, because it was not something that was causing any particular harm. It is simply changing the naming of something into a contemporary phraseology, which I am quite frankly reasonably agnostic about. I am not sure it takes it anywhere other than to be more hip from a legislative point of view and, if that is the case, that is good, but the world has not been suffering terribly by reason of this not having been done last year or the year before. It is in here as part of what you would have to concede is a mixed bag of measures. This has got all sorts of things—burials and cremations, magistrates, all sorts of things—so that is why it is here.

Ms CHAPMAN: I do understand that, Attorney, and, in fact, as I previously pointed out, the last Attorney-General's portfolio bill to pick up miscellaneous matters, and sometimes not as pressing or not deserving of independent legislation, was the 2011 bill, dealt with in 2012. This academic debate, that you have referred to in your own second reading, was actually back in the 2008 era. In fact, some of the academic contributions made in this regard, some of which you have referred to in your second reading, also were provided through briefings from your office, and I thank them for providing that.

But this has been going on for years. New South Wales, as you acknowledged in your own contribution, dealt with this issue back in 2010. So I am just asking why this was not picked up in the last mop-up of the usual Attorney-General portfolio matters. It is significant, according to these academics, and you acknowledge it is significant. It is still an offence, but it is an issue in relation to contemporary language, in which we are a long way behind. I just want to know whether there was some reason. Had it been forgotten, or slipped off the bench? I do not understand why we are here in 2014 dealing with this when the last portfolio bill we had was two years ago.

The Hon. J.R. RAU: I think I have said all I can say about this. The member for Bragg is probably more with it—is that what they say these days, with it: or hip, cool—than me.

Mr Treloar: Groovy.

The Hon. J.R. RAU: Groovy. Anyway, the member for Bragg is more groovy than me because the member for Bragg is more in with contemporary hip, cool daddy, sort of wag—

The Hon. T.R. Kenyon: She's got more swag.

The Hon. J.R. RAU: Swag. The member for Bragg has got a bit more swag than me. I am a bit behind the times. My children say that frequently. They say, 'That's not right. You don't use that.'

Ms Chapman: Don't say 'groovy'. They will think you are in the dark ages.

The Hon. J.R. RAU: They have actually said that to me on occasions, yes. Anyway, if I stand accused of using slightly antiquated, quaint language, I possibly have to plead guilty. If I stand accused of being more preoccupied with minor things such as introducing an ICAC, changing WorkCover and various other things, then changing a semantic proposition in order to be more of a swag—is that what it's called—

The Hon. T.R. Kenyon: You have swag.

The Hon. J.R. RAU: Yes—I have to say, 'You got me, guvnor.' But nobody has suffered, other than those who are in with the hip language, by reason—

Ms Chapman: The domestic violence groups are not going to be happy with this language.

The Hon. J.R. RAU: This language does not change who is captured by the offence, so it is purely and simply a question of nomenclature. That is it. It is a completely vacuous argument in terms of the impact it has on the people who are behaving in this way, which we all agree is unacceptable. They are still being prosecuted now. There is no change in the scope or the reach of the offence. None at all. This is about whether or not there is some contemporary language to describe something which is not changing. That is it. That is all it is about.

It is in this bill. If New South Wales managed to get it in one of their portfolio bills in 2010, good for them. It is in here and it should pass, I hope. I am, frankly, puzzled as to why we are spending any time at all having a conversation about why a piece of semantics was not massaged a couple of years ago, or now, in circumstances where there is no substantial change whatsoever to the reach or scope of the offence. I am acknowledging that the change is appropriate. I am simply saying that, in the queue of things that we are working our way through, this was not a standalone proposition. Something which should be in a portfolio bill—it is in a portfolio bill—we are trying to deal with it, but it does not make any practical difference in terms of whether particular behaviour is captured by the offence or not.

Ms CHAPMAN: I am disappointed we do not have an answer, Attorney, as to why. It may be that it was just overlooked, and that may be a perfectly legitimate reason, but to have given no answer and just to diminish the importance of this reform in that spray I think is undignified and unacceptable for those who have been passionately advocating for this for at least, to my knowledge, the last six years on which we are at the tail end charlie of. Nevertheless, we will be supporting the amendment. I am happy, Madam Acting Chair, to move to clause 13.

Clause passed.

Clauses 7 to 12 passed.

Clause 13.

Ms CHAPMAN: Could the Attorney identify whether he had any conversation with the current Chief Magistrate before implementing this proposed amendment and, if so, when?

The Hon. J.R. RAU: I honestly do not recall. I may have, I may not have, I do not know. I just don't know, but I will make this clear: this is tidying up and I certainly am not in a position where I can recall any particular discussion with the current Chief Magistrate about this matter. It may or may not have been canvassed at some time; I honestly do not recall.

Ms CHAPMAN: Did you have any discussion with the Chief Magistrate at the time that we dealt with the amendments to the District Court Act and Supreme Court Act in the last couple of years as to any reason why a similar provision would or would not be introduced in the Magistrates Court Act?

The Hon. J.R. RAU: Again, I have no recollection one way or the other, but my assumption is probably not, because—and I stand to be corrected by my advisers—my recollection of the matter is this: the Supreme Court Act provision had been there for some time. It was only circumstances which presented themselves in the District Court which turned my attention to the absence of such a provision in the District Court and that, I believe, raised in my mind the question as to whether there was such a thing in the Magistrates Court which is why it is in here. Because it only concerned the District Court I think it is highly unlikely I had any conversation with the Chief Magistrate about that matter, but I have no particular recollection of it.

Ms CHAPMAN: I know you had discussions with the then Chief Judge of the District Court when the amendments were introduced to that act, because obviously Chief Judge Worthington's retirement at that time was imminent. However, when you changed the Supreme Court Act, did you have any discussion with the Chief Justice about the amendment to his act and, if so, was it prior to moving that amendment?

The Hon. J.R. RAU: I cannot recall any particular conversation about that either. I am not even sure off the top of my head what year the Supreme Court one was done, but if it was done in my time I can say with some confidence that I would have discussed it with the then chief justice, but I have no recollection of that. I know that my practice would not have been to fiddle with the Supreme Court Act without having talked to the Chief Justice. I specifically do recall having talked to Chief Judge Worthington, although I do not remember word for word what the conversation was.

Ms CHAPMAN: So, having discussed the reforms in relation to the Supreme Court and District Court with their chief judicial officer, why would it be any different to you proposing to amend the Magistrates Court without a discussion with the chief magistrate, or indeed with any other representatives in the magistracy whom this may affect?

The Hon. J.R. RAU: First and foremost, at the moment the Chief Magistrate is, temporarily I hope, absent from duties. Secondly, I formed the view that, having had this matter confront me as a problem in a very specific sense in the District Court (and I do not now have a recollection of exactly what was the story in the Supreme Court), but certainly having a real problem in the District Court it was prudent housekeeping to do this.

Ms CHAPMAN: You had a discussion about it with the people affected by that, and obviously you are the party under the Magistrate's Court Act, as the Attorney, who is in a position to be able to grant extended leave, for example, or to not act in a circumstance where a magistrate takes leave (or could otherwise be adjudged as being not able to undertake their duties under the Magistrate's Court Act), and in the circumstances—and I indicated in the second reading and I will not go into the detail of that in this parliament—as to the need for extended leave (and that is acknowledged), and having identified that there was likely to be a request and the fulfilment of it for an extend had period of leave, that this matter was drawn to your attention.

It just seems incomprehensible that you would not have had any discussion with the Chief Magistrate that, during her absence or even before she left, you would be introducing a bill that would affect the appointment of her position as a replacement as an acting chief judge, and, indeed, whether in the normal practice of meeting regularly with the heads of the court, what the replacement arrangements ought to be in place during her absence. It is incomprehensible to me that there would not have been some discussion and some alert to her of your view, as you have expressed, of the need to fix up this matter as you deem to be necessary.

The Hon. J.R. RAU: I do not know how many ways I can say this. The Chief Magistrate has been absent, for reasons that are not relevant, for a period of time. This bill was being assembled post election, and this in my view was a necessary and appropriate housekeeping matter which did not, much like the one you referred to earlier about the definition of child pornography, warrant a stand-alone proposition, was not of that nature of urgency, but was an appropriate thing to include in one of these.

Ms Chapman interjecting:

The Hon. J.R. RAU: With the benefit of hindsight a great many things might have been done by a great many people. Perhaps even the member for Bragg at some point might have done something different—I do not know. All I am saying is that there is nothing sinister about this, this is just something that seems to me to be self-evidently sensible housekeeping. It is appropriate to be in a portfolio bill, it does not warrant a stand-alone proposition, and the Chief Magistrate has not been around the place for a while.

I have no recall of any particular conversation with the Chief Magistrate about this matter. I have formed the view that it is here as a matter of housekeeping because, having been presented with the issue in the District Court a while ago, when we were putting this thing together it occurred to me that we could be presented with an equally unsatisfactory position in the Magistrates Court, given certain circumstances.

At the present time—and I say this again—Dr Cannon is performing the role. I have not been in receipt of complaints about Dr Cannon, and my meetings with him in his capacity as Acting Chief Magistrate have been cordial; he has been helpful and constructive.

Ms CHAPMAN: Did you have any conversation with the Deputy Chief Magistrate either before or after the introduction of this bill about the need for this amendment?

The Hon. J.R. RAU: I do not believe so. This has, quite frankly, in my mind, nothing much to do with Dr Cannon. It depends how you look at it. If you come at this and see this as a conspiracy, well, of course it looks very sinister, but if you look at it from my point of view, I am doing bit of housekeeping.

The ACTING CHAIR (Ms Hildyard): This is the final question on this clause. This will be the seventh question.

Ms CHAPMAN: Just for future chairmanships, Madam Acting Chair, I am happy in bills to ask my three questions on every clause on the bill, or I am happy to confine it to the clauses that are pertinent and in dispute.

The ACTING CHAIR (Ms Hildyard): Sure.

Ms CHAPMAN: As long as we understand that.

The ACTING CHAIR (Ms Hildyard): I thought seven was a reasonable number.

Ms CHAPMAN: In the next bill, we have 58 clauses, so it can take a long time. Let's just go back to the position of what I think you and I are describing as a 'tidy up' of the situation to be consistent with the other two acts. You have not consulted with the Chief Magistrate; you did not see that as necessary. You have no recollection of having discussed it with the Deputy Chief Magistrate.

When the circumstances prevailed in this instance, where a deputy was going to be called upon under the act to undertake the Chief Magistrate's role, did you at that stage engage in any discussion with the Deputy Chief Magistrate about his willingness to undertake the role as acting, given that it was likely to be over an extended period of time, and was there any indication by him other than that he was happy to undertake that duty as part of his current statutory role as deputy?

The Hon. J.R. RAU: No, I did not. This underscores the point, I guess, because as things presently stand neither the deputy nor I have any choice. Had a provision such as this been there, I could have had a conversation with the deputy and said, 'Look, are you okay with this? You don't want to go on leave for the next year? Are you happy to be sitting there for an indeterminate period of time?' The deputy might have said, 'Yes, I'm fine with that,' or the deputy might have said, 'Well, actually that's damn inconvenient. Can't you pick somebody else?' As things presently stand, that conversation is not open to me because there is nothing to talk about.

Ms CHAPMAN: Have you had any conversation with the Deputy Chief Magistrate, since this bill has been introduced, about proceeding with it? That is, since he's been the Acting Chief Magistrate, do you have regular meetings with the Chief Magistrate?

The Hon. J.R. RAU: Yes, I think I have said that. I meet with the Acting Chief Magistrate. I cannot remember how often—every six weeks, five weeks, four weeks, something like that, I do not know. We sit down and we have a chat. I do not recall having spoken to him about this. The difference between the member for Bragg and me is that as far as I am concerned this is not about the Deputy Chief Magistrate: this is about tidying up the legislation, that is all.

Ms CHAPMAN: Attorney, this is where the difference is. Even if you think it is a tidy-up, if you think it is an amendment that is necessary to follow on as a precedent that has been set in other levels of the judiciary, it is still a change to a piece of legislation which is there designed for the establishment and operation of the magistracy in South Australia.

Given that you are, as Attorney, regularly meeting with the Chief Magistrate, as you would expect, this would be a logical thing to discuss with him or her—however minor you think it may be and however independent it may be of the current circumstances—but at no time it appears that you have had any discussion with anyone. When I have had advisers from your office consult with me on this matter, there does not appear to have been consultation with anyone, not the Law Society, nobody.

So, I ask: given that you say this is to be consistent with other jurisdictions, is it not the situation, though, that in the Supreme Court and the District Court there was no provision in those acts for what was to happen for an acting chief judge or chief justice in those legislations so you had to do something? You came to me, you came to the opposition, and we had to deal with the situation and the circumstances because you had not nominated your successor.

Therefore, to ensure that there was no vacancy in this head position and that the potential may be that any delay in that, because you had not yet made the appointment as to who you wanted to have as your chief judge in the District Court, we came into this house to remedy that situation because the District Court Act at that stage, and separately on the Supreme Court Act, was silent on that issue.

This was a not a situation of bringing in the Magistrates Court amendment to in some way deal with this in the same way as the Supreme Court and the District Court because they had no provision. We have provision already in this legislation. We have it there, and there is a circumstance prescribed in this legislation which is to deal with the absence of a chief magistrate for any reason that they are unwilling or unable to undertake that duty.

I do not see it all as consistent with bringing it into line with that legislation and, if you say you are doing it to now make it the same, are you going to do the same in respect of the dismissal of judges, bringing it into line with magistrates or magistrates in line with judges? The answer to that logically is no. This parliament makes decisions under the Supreme Court and District Court as to dealing with the capacity to dismiss judges for obvious reason—the separation of powers. The Magistrates Court has a different procedure: the termination of Magistrates Court magistrates can be dealt with by you.

We have a different regime because to date we have not treated the magistracy in the same manner as we have the Supreme Court, and then in the 1970s the addition of the District Court. We treated them as in different roles, and of the appointment and dismissal included in that—indeed, even their salary entitlements—as different from judges. My question is: if you say that this is to be in line and consistent with the Supreme Court and District Court acts, which were indeed silent on this issue, are you intending to move to make amendments in respect of the termination arrangements for magistrates?

The Hon. J.R. RAU: I think this is relevant to what has just been said. This is a quote that I think is most apposite. These are not my words, this is a quote:

…this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about that. That does not make sense…Why would a Wookiee, an 8-foot-tall Wookiee, want to live on Endor with a bunch of 2-foot-tall Ewoks? That does not make sense!...'What does that have to do with this case?' Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!...None of this makes sense.

It is a complete red herring about dismissal introduced completely at random—nothing to do with this, absolutely nothing to do with this—as proof that, because I am not doing something about something that has nothing to do with this, that means there is something wrong with this. This is South Park; it is crazy. The reality is this is nothing more than it purports to be. I am not intending to do anything about dismissal. If I was it would be in here. This proposition is really, really simple. The chief magistrate may be unable to serve for a range of reasons for an indefinite period of time or a short period of time in circumstances where (a) the deputy chief magistrate is absent, (b) the deputy chief magistrate is unwell or on leave for some other reason, and (c), and perhaps even more complicated, the deputy chief magistrate does not for whatever reason want to serve—

Ms Chapman: You didn't ask him; you didn't even ask him.

The Hon. J.R. RAU: I didn't have to because the law says he is serving. Hello!

Ms Chapman: And if he wasn't available then you would have come in here.

The Hon. J.R. RAU: For goodness sake! If we had not done something about this, if Mr Cannon—and I do not wish this on him—became unwell, he would say, "Why didn't you foresee this and have something fixed? Now you're forcing us to come into this parliament in a rush, just like you did with the District Court. You should have foreseen this, you silly man, you didn't see this coming.' Well, hello! We have seen it coming; it is possible, and we are trying to fix it.

Ms CHAPMAN: So, I take it that is a no.

The Hon. J.R. RAU: You can take it however you like but that's the answer.

Ms CHAPMAN: Your position is that you have come in here to deal with this to make it consistent. We say that it is not consistent; it was not before, and the District Court and the Supreme Court acts were silent on these issues, Attorney, and now you are trying to say that you are just fixing up this little tidying up arrangement to make it consistent. I am just asking: are there any other planned amendments to the Magistrates Court Act or, indeed, the others that you say that you are going to move to somehow or another make them consistent? They are an entirely different structure. The terms of appointment, the salaries, the entitlements, the retirement arrangements, the dismissal arrangements are all different. Is it the intention of the government that, apart from this one issue that you say you are going to make consistent with the other legislation, it is going to be amended, that is proposed?

The Hon. J.R. RAU: It is the intention of the government that at no point in time in the future should the Magistrates Court be in a position where it is leaderless.

Ms CHAPMAN: Is it the intention of government that, if it is going to make any amendments to the magistrates' structure (if I put that generally), you will consult with the chief magistrate in respect of his or her court?

The Hon. J.R. RAU: That would be my normal practice. If it was something that was actually an issue, like, I was going to say, that their termination arrangements would be different, or something of that nature, I expect I would. We get to the fundamental point here: the member for Bragg sees this as something sinister; I see this as a bit of prudent housekeeping. That is the difference.

Ms CHAPMAN: To use the current legislation, which provides in the Magistrates Court Act that you, Attorney, have the capacity to deal with a situation in the event that the chief magistrate is not able to undertake his or her duties. The terms of the provision in this act make provision for the deputy to do that, and in the event that the deputy is unable or unwilling to undertake that role as part of their duties as the deputy then, of course, you have the power to appoint a new deputy. Why would you not elect that option rather than coming in here and presenting this as some kind of tidying up provision?

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:00.

The SPEAKER: I call the members for Newland, Elder, and the Treasurer to order for interjecting 'Shame!' after the reading of a notice of motion, but, I—

The Hon. T.R. Kenyon: Thank you, sir.

The SPEAKER: It is a pleasure to give you that warning—but, I warn the opposition that it is routine for the opposition to yell 'Shame!' after second reading divisions, and I will be warning them also.

Honourable members: Shame!

Dr McFetridge: Kavel made us do it; we didn't want to do it.

The SPEAKER: One man must suffer for the people.