Statutes Amendment (Youth Court) Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 10 September 2015.)

The Hon. J.R. RAU: I thought I would say just a few things about what our proposals are and where we are going with this piece of legislation. I have some filed amendments which I believe people have seen and have been distributed, so I will give a short explanation about this.

The Youth Court bill, as first passed by the House of Assembly, proposed that the head of the Youth Court be a District Court judge or the Chief Magistrate, who is actually, by reason of the statute, also a District Court judge. In the other place, the Hon. Andrew McLachlan filed amendments which were passed in the other place and which had the effect that the head of the Youth Court must be a District Court judge and not the Chief Magistrate.

That is not really satisfactory from our point of view. As a result of recent discussions, I have filed alternative amendments that propose the principal judicial officer of the Youth Court will be the senior magistrate of the Youth Court, being a magistrate who is designated by proclamation to be the senior magistrate. In other words, it is going to be a group of dedicated magistrates. This is not a circulating pool of magistrates. These are dedicated magistrates who are doing Youth Court work all the time, they are not on a roster or something else. That is the first thing. The second thing is that they are led by a designated full-time Youth Court senior magistrate who will be gazetted as such. So, although they are all appointed under the Magistrates Act, they are to all intents and purposes a discrete court of their own with their own business. That is what we are proposing.

It has always been intended by the bill that the Youth Court will continue to be a separate jurisdiction, and this maintains that, and to operate out of a separate court, and this maintains that. The effect of the alternative amendments is that there will be a principal judicial officer of the court who will be, as I said, the senior magistrate, who is dedicated to that role—they do not do anything else—and they will support the dedicated magistrates who will be in that court. Again, I make the point, these are dedicated magistrates; they are not rolling in and out; they are there full-time.

I anticipate that this will allay some of the concerns that have been raised in relation to the bill as it was first passed by the House of Assembly, which were focused on the need to ensure judicial officers of the Youth Court have appropriate experience, expertise and specialisation in youth matters. The alternative amendments alter the bill in the following ways: first of all, all reference to 'judge of the Youth Court' is changed to reference to 'senior magistrate of the Youth Court.' Secondly, in the absence of the senior magistrate from the court, responsibility for administration of the court devolves on the most senior of the magistrates available to assume that responsibility, which is consistent with the provision that currently exists in the Youth Court Act in relation to the senior judge of the Youth Court.

The Remuneration Tribunal may determine that the senior magistrate of the court's salary or allowance as a magistrate will have an additional component on account of holding office under the Youth Court Act. My expectation would be that that is indeed what would happen: there would be a consideration of this matter by the Remuneration Tribunal and they would fix an additional salary increment which would be particular to this new role, over and above the ordinary salary of a magistrate.

In relation to appeals from the Youth Court, while the senior judge of the Youth Court currently hears some appeals, the senior magistrate will not. All appeals from the Youth Court will go to the Supreme Court, and this is consistent with appeals provisions in the Magistrates Court Act. This is one of the things we are doing around the place as we are reforming things. We are trying to get some consistency in the appeal processes, so if it is good enough for a justice's appeal from the Magistrates Court to go to the Supreme Court, why is it not good enough for an appeal from the Youth Court to go to the Supreme Court?

An amendment is proposed to the Cross-border Justice Act 2009. The Cross-border Justice Act was not amended by the bill as first introduced into the House of Assembly. In section 7(1) of the Cross-border Justice Act 2009 the term 'prescribed court' is defined as:

…the Youth Court of South Australia other than when constituted by or so as to include a judge;

This definition needs to be amended as part of the package of alternative amendments as the Youth Court will no longer be constituted by a judge at any time.

I think that really covers off on the points. The in-house amendments do not change the bill to the extent that it relates to other Youth Court magistrates and, as already noted, there will be a requirement for there to be at least two magistrates who are designated as members of the court's principal judiciary and are, in other words, dedicated Youth Court magistrates.

When you add all of that up, we are going to have a court which is at least three people strong, and one of those people will have the designation Senior Magistrate. That person will, to all intents and purposes, be the person in charge of that court. They and at least two other designated magistrates will be permanently Youth Court magistrates, they will not be floaters, and they will be therefore people whose sole task it is to deal with matters relating to youth issues as required by various acts.

As I said, I think that to the extent that there has been some reference made to whether or not there should be District Court judges or otherwise, a senior dedicated full-time particular magistrate combined with a direct line of sight appeal from there to the Supreme Court is, I believe, a good solution to address some of the matters of concern raised in the other place. They are my general thoughts on the matter. I move:

That the House of Assembly disagree with the amendments Nos 1 to 5 made by the Legislative Council and make the following alternative amendments.

No.1 Clause 4, page 3, line 14 [clause 4, inserted section 9(1)(a)]—

Delete 'Judge' and substitute 'Senior Magistrate'

No.2 Clause 4, page 3, line 15 [clause 4, inserted section 9(1)(b)]—

Before 'magistrates' first occurring insert 'Other'

No.3 Clause 4, page 4, line 3 [clause 4, inserted section 10(1)]—

Delete 'Judge' and substitute 'Senior Magistrate'

No.4 Clause 4, page 4, lines 4 to 7 (inclusive) [clause 4, inserted section 10(2)]—

Delete subsection (2) and substitute:

(2) The Senior Magistrate of the Court is a magistrate designated by proclamation as the Senior Magistrate of the Court.

No.5 Clause 4, page 4, lines 8 to 10 (inclusive) [clause 4, inserted section 10(3)]—

Delete subsection (3) and substitute:

(3) A proclamation designating a person as the Senior Magistrate of the Court must—

(a) state a term (not exceeding 5 years) for which he or she is to be the Senior Magistrate; and

(b) classify the Senior Magistrate as a member of the Court's principal judiciary (being a member who is to be occupied predominantly in the Court).

No.6 Clause 4, page 4, lines 11 to 13 [clause 4, inserted section 10(4)]—

Delete subsection (4) and substitute:

(4) At the expiration of a term of office, a person—

(a) may be designated by subsequent proclamation as the Senior Magistrate of the Court for a further term (not exceeding 5 years) stated in the proclamation; and

(b) if so designated, must be classified in the proclamation as a member of the Court's principal judiciary.

No.7 Clause 4, page 4, lines 16 and 17 [clause 4, inserted section 10(6)]—

Delete 'Judge' wherever occurring and substitute in each case 'Senior Magistrate'

No.8 Clause 4, page 4, line 20 [clause 4, inserted section 10(7)]—

Delete 'Judge' and substitute 'Senior Magistrate'

No.9 Clause 4, page 4, lines 22 to 25 (inclusive) [clause 4, inserted section 10(8)]—

Delete subsection (8) and substitute:

(8) In the absence of the Senior Magistrate of the Court from official duties as the principal judicial officer of the Court, responsibility for administration of the Court devolves on the most senior of the magistrates of the Court who is a member of the Court's principal judiciary and is available to assume that responsibility.

No.10 Clause 4, page 4, lines 26 to 29 [clause 4, inserted section 10(9)]—Delete subsection (9)

No.11 Clause 4, page 4, line 30 [clause 4, inserted section 10(10)]—Delete 'Judge of the Court may (if he or she is not the Chief Magistrate)' and substitute:

Senior Magistrate of the Court may

No.12 Clause 4, page 4, lines 33 to 41 [clause 4, inserted section 10(11)]—

Delete subsection (11) and substitute:

(11) The Remuneration Tribunal may determine that the Senior Magistrate of the Court's salary or allowances as a magistrate will have an additional component on account of holding office under this Act.

(12) Any salary or allowances payable as an additional component of remuneration under subsection (11) cannot be reduced during the person's term of office as Senior Magistrate of the Court.

No.13 Clause 5, page 5, line 3—Delete 'Judge' and substitute 'Senior Magistrate'

No.14 Clause 6, page 5, line 6—Delete 'Judge' and substitute 'Senior Magistrate'

No.15 Clause 7, page 5, line 9 [clause 7(1)]—Delete 'Judge of the Court or a' and substitute:

Senior Magistrate of the Court or another

No.16 Clause 7, page 5, lines 13 and 14 [clause 7(2)]—Delete 'Judge of the Court nor a' and substitute:

Senior Magistrate of the Court nor another

No.17 Clause 7, page 5, line 22 [clause 7(4)]—Delete 'the Judge of the Court or'

No.18 Clause 8, page 5, line 25—Delete 'Judge' and substitute 'Senior Magistrate'

No.19 Clause 9, page 5, lines 30 to page 6, line 9 [clause 9(2), inserted subsection (2)]—

Delete subsection (2) and substitute:

(2) The appeal lies—

(a) if the judgment is given by the Senior Magistrate of the Court or any other magistrate—

(i) in the case of an action relating to a major indictable offence—to the Full Court of the Supreme Court; or

(ii) in the case of any other judgment (including an interlocutory judgment)—to the Supreme Court constituted of a single Judge; or

(b) if the judgment (including an interlocutory judgement) is given by a special justice—to the Supreme Court constituted of a single Judge.

No.20 Clause 9, page 6, line 11 [clause 9(3)]—Delete '(2)(b)(ii)' and substitute '(2)(a)(i)'

No.21 Clause 10, page 6, line 14—Delete 'Judge' and substitute 'Senior Magistrate'

No.22 Clause 13, page 6, line 38 [clause 13(1)]—Delete 'Judge' and substitute 'Senior Magistrate'

No.23 Clause 13, page 7, line 2 [clause 13(2)]—Delete 'Judge' and substitute 'Senior Magistrate'

No.24 Clause 14, page 7, line 6—Delete 'the Judge of the Court or'

No.25 Clause 15, page 7, line 10—Delete 'Judge' and substitute 'Senior Magistrate'

No.26 Clause 17, page 7, line 24 [clause 17(3)]—Delete 'the Judge of the Court or'

No.27 Clause 19, page 7, line 36 [clause 19(1)]—Delete 'the Judge of the Court or'

No.28 Clause 21, page 8, line 7—Delete 'the Judge of the Court or'

No.29 Clause 22, page 8, line 9—Delete all words in line 9 and substitute:

Section 29(1)—delete 'Judge' and substitute 'Magistrate'

No.30 New Part, page 8, after line 9—After Part 5 insert:

Part 5A—Amendment of Cross-border Justice Act 2009

22A—Amendment of section 7—Interpretation

Section 7(1), definition of prescribed court, (a)(ii)—delete 'other than when constituted by or so as to include a judge'

No.31 Clause 23, page 8, line 13—Delete 'the Judge of the Court or'

No.32 Clause 24, page 8, line 17—Delete 'the Judge of the Court or'

No.33 Clause 25, page 8, line 20—Delete 'the Judge of the Court or'

Ms CHAPMAN: Sometimes the Attorney has a good idea but behaves badly. Sometimes he has a really bad idea but he is very polite and professional about it so we sort of take that into account. Sometimes he has a really bad idea and also behaves badly, and we are at the third. This piece of legislation is flawed from the outset for all of the reasons we have previously canvassed, that is, the government's attempt to downgrade the leadership and governance and model of judicial application for youth matters to save money and to probably be part of a greater picture to get rid of the District Court altogether. However, let us just stick to what we have got.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Anyway, I will not be distracted by the poor behaviour. Let me get back to the substance of the poor act, and that is that unquestionably the question of the leadership and the seniority of the court and the public confidence in it demands that it continues to have a District Court head judge at the helm of this court.

I will not traverse all of those arguments again. I acknowledge that the Attorney proposes that the principal judicial officer is to be now a magistrate or a special magistrate (is his second option) and that there are appeal powers that change from the current process to lying with the Full Court of the Supreme Court, although from my recollection of this legislation it does allow the Chief Justice of the Supreme Court to determine that that be constituted by only two Supreme Court justices for that purpose, so it seems to be a special provision even in that area.

When we debated this in the first instance, the commissioner for review of child protection systems, Margaret Nyland, also a former retired Supreme Court judge, made it very clear that she felt that this was the wrong direction. It was her view, which she published to both the Attorney and me, that it was not a course to be undertaken.

Then the government decided, as the Attorney has pointed out, that they would propose an alternative structure and the Attorney wrote to me—and, no doubt, others who are involved in this debate—about the outcome of a meeting in October which the Hon. Andrew McLachlan MLC attended with a member of the Attorney's staff, the former chief magistrate and the Senior Judge of the Youth Court. He wrote to me and said:

In that meeting it was resolved that the government would prepare amendments to the Bill which would provide for the Youth Court to have a Senior Magistrate as its principal judicial officer and additional magistrates who are dedicated Youth Court magistrates.

That is not an accurate assertion of the outcome of that meeting, and I have not only discussed that matter with Mr McLachlan, who is named in that group, but others who attended it. It was very disappointing, therefore, having been presented with this correspondence, to then find that it was not accurate and, in fact, there had not been any such agreement. Certainly, a proposal had been put on behalf of the Attorney's representatives about this alternative regime, as has been outlined by the Attorney and which is the same compromise position, if I can put it in that manner, but it certainly was not resolved; and I do not take kindly to that position being put when it clearly is not correct.

However, even in those circumstances, if it was a good idea, we would consider it, but it is not a good idea. In considering that aspect, as to whether that could allow the restructure to go ahead with this compromise position, again, I communicated with Commissioner Nyland and she made it very clear that this option was also not acceptable. She said:

I advise that I am opposed to the amendment. I have advised the Attorney-General that I do not support any amendment to the Youth Court Act which removes a District Court judge as head of jurisdiction. I indicated in my letter to the Attorney that the Youth Court has a significant part to play in shaping child protection policy and practices in this State and it makes some of the most important judicial decisions which affect our community—that is decisions which impact on the welfare and development of vulnerable children. The complexity and difficulty in applying relevant principles has been highlighted by a number of expert witnesses in submissions and evidence to this Commission and also from examination of some of the judgments delivered by that Court. I also believe that the description of some of the Youth Court procedures, as mentioned in the course of the Chloe Valentine inquest, may have been simplistic and potentially misleading. These are all matters about which I expect to make observations in my final report.

She goes on to point out, again, that she considers the Youth Court to be a specialist jurisdiction and is deserving of having a District Court judge at its helm.

I do not understand why the Attorney-General and his government would pay millions of dollars to employ an experienced person such as Margaret Nyland, a retired Supreme Court judge, to investigate child protection matters, which is the core business of the Youth Court, and not take any notice of her. It is just beyond comprehension why the government would undertake that exercise, important as it is. We are expecting to have her report next year and we find we have not only got a piece of legislation introduced but, contrary to that, being rejected; and, when a further proposal is put up, it is again rejected.

In another piece of legislation that we will deal with later today I will be referring to Ms Nyland's views. I think it is incumbent upon us to listen to her, but that does not mean we have to accept every recommendation she might make. This has been a very longstanding inquiry. We are yet to receive her report, and the government in its haste to restructure and save money want to push this through. Not only are they trying to push this legislation through but they have already ripped out some of the structure as existed in the Youth Court because, legally, they are able to do so.

They need our consent and our blessing to be able to dispose of the District Court judge at the helm of this court. In April this year, they disposed of the obligation in respect to the second judicial officer being a judge who was called in from time to time to do trials, mostly, and replacing that with the appointment of a magistrate. They are doing the best they can to already carry out the effect of this legislation, but there is this one last bit that they want to be able to push through.

I think it would behove the Attorney to understand the report from his very own Courts Administration Authority which, of course, is prepared by the Chief Justice and members of the Courts Administration Authority entity, if I could describe it that way, because it does have a separate status to the department, being separate to the Attorney General's Department. This report has been tabled recently in our parliament, and it sets out a number of statistics in respect of the courts. The Youth Court is outlined at pages 23 to 26, and I am going to refer to some of it.

I would urge the Attorney to have a good read of it, if he has not already. He might like to note that the outstanding judgements for District Court judges is actually listed as at 30 June 2010, especially the ones that are over 12 months, of which there were three and about which he was going off to get some information, but we still do not have any response in respect of the Supreme Court judgements that are outstanding.

The report tells us that there has been an increase and decrease in various civil and criminal matters in those superior courts, but they have still got a lot of work to do, and the Magistrates Court continues to have a lot of work to do. Whilst there have been some parts of its jurisdiction transferred to fines, enforcement units and the like, it still has an enormous amount of work to do. In particular, in relation to the Youth Court it is detailed, as I have said, on page 23 onwards.

Let me highlight a couple of things. Firstly, whilst there has been a relatively small reduction in the number of criminal lodgements in the Youth Court in the last 12 months relative to last year, the number of care and protection lodgements has very significantly increased—something like 15 per cent or 19 per cent, so just let me clarify that. The care and protection or investigation and assessment applications have gone from 397 last financial year to 721 this financial year, which is a 44 per cent increase on the previous year.

It is not difficult to appreciate that in the child protection jurisdiction, the Youth Court is extremely busy. Whilst they also have a role in the adoption of children and applications for surrogacy orders, they are usually very small in number. In fact, there were only nine adoptions last year, and surrogacy, two. I do not want to diminish those, they are important matters for consideration, but if I look just at the child protection aspect, surely the Attorney realises that this is a major area that needs specialist and senior leadership.

One thing I will bring to the Attorney's attention is that, of the investigation and assessment lodgements in 2013-14, as I have said from 397 to 721, it is interesting to note—and this relates to one of the Coroner's recommendations in the Chloe Valentine case—that the number of lodgements last year was 794, and investigation assessment lodgements, 721. A very significant majority of the lodgements also had investigation and assessment lodgements with them. However, last year, the care and protection lodgements were 649, and only 397 of those had investigation and assessment lodgements with them. Margaret Nyland is right: there are very complex aspects in relation to these areas in particular and they need to have senior leadership.

On the criminal matters, I note from the DPP's annual report this year that the government has also ceased the provision for the conduct of prosecution of major indictable matters being dealt with by the DPP as a pilot, which Mr Ian Press SC reports having been very successful. Those matters are now back in the hands of police prosecutors. It seems that, at every level, the government is insisting on trying to save money at the expense of children, and that is just not acceptable to us.

The most concerning thing to me, which again is confirmed in the annual report, is that the Youth Court currently works on the basis that care and protection trials are listed within 10 weeks of the filing of the application, so that families are not left for months or years as currently applies in matters in other courts; and secondly, their criminal matters are dealt with and provided for trial within three to six weeks.

That is in stark contrast to the time spent waiting for a trial of matters in the other courts. I do not say that to reflect poorly on them. They claim, of course, as the Chief Justice does when he comes down to estimates every year, that they are significantly underresourced, they have vacancies of judges, they are being asked to slash their budgets, they spend all their time preparing for a new court and that gets slashed, and they have a lot of other problems.

But why on earth would we in some way diminish the total resource of the Youth Court—which is what this bill does—when this court is operating as it should be to deal with the prompt and efficient resolution of both criminal matters for children and the care and protection responsibilities that they have?

It is completely beyond me why the government should be so obsessed in wanting to downgrade the major indictable matters for prosecution and downgrade the court structure and not recognise the experience of those people who have worked in this field for something like 40 years, like Ms Nyland, and to persist with this. It can only be about money, and I, for one, consider that children and their future, their safety, their protection and the opportunity for them to have a second chance, if they are caught up with the law, are absolutely paramount. We should be prioritising that and not trying to diminish it.

All this business about, 'We'll keep it as a separate jurisdiction, but we're going to change who is in it, we're going to change who is responsible for dealing with these children in respect of the prosecution of the major indictables, and we're going to strip it of some resources along the way,' is just not acceptable to us. It is a bad idea and the bad conduct of the Attorney in trying to push this through is reprehensible. Notwithstanding that, the most important thing is that it will be bad for children and we will not accept those amendments.

Motion carried.