Bills

Statutes Amendment (Courts and Justice Measures) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 September 2016.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:04): I rise to speak on the Statutes Amendment (Courts and Justice Measures) Bill 2016. This is a bill that was introduced by the Attorney-General in September and claims to make minor amendments to a number of acts, including the Bail Act, the Criminal Law Consolidation Act, the Evidence Act, the Solicitor-General Act, the Summary Procedure Act and the Youth Court Act, amongst others. In summary, it is fair to say that many of the amendments are relatively minor and I think, from our perspective, we accept that there are some efficiency measures that are being incorporated.

There is an exception to that, however, and that is the amendment to the Solicitor-General Act 1972, which I will address shortly. The opposition will support the bill, but let me say that it never ceases to amaze me that we continue to have significant acts open for amendment and yet the government chooses not to progress the tidy-up requirements on which clearly they have had advice over a period of time.

Yet again, we have to come before the parliament with a bill such as this. From time to time, there are circumstances in which acts that are not usually opened are in need of amendment and a tidy-up is appropriate. But these are acts that are frequently opened and about which I think the government is being particularly lazy, or attempting to make it look like it is doing more than it is by introducing another bill.

Be that as it may, regarding the amendments to the Bail Act, I was advised at the briefing provided by the Attorney-General's Department that the Chief Magistrate had sought to widen the class of persons who can witness a bail agreement or a guarantee for bail to include the registrar or deputy registrar. Given that we are about to have a judicial registrar in legislation, a bill which is to follow this one, one wonders whether we might need another piece of tidy-up legislation to add to that, particularly as it is proposed that they will have some administrative duties.

Next we have the amendments to the Criminal Law Consolidation Act and the Evidence Act, apparently as requested by the Chief Justice and Chief Magistrate, to allow the greater use of a video link-up during court matters and the court deciding whether it is suitable for an appellant or respondent to appear through an audiovisual link. The use of this means of attendance, via video or audio link, is and has been an important initiative, both for the protection of witnesses and of course the minimising of costs in transport and supervision for those who are in custody. That is a measure we will support in its expanded use.

Next we have a request by parliamentary counsel to amend the Legislation Revision and Publication Act 2002 to recognise the electronic publishing of documents—hooray! I am pleased to see that is finally being put to bed, as such. Then we have the amendments to the Evidence Act, as requested by the DPP, to extend the current section 13B of the Evidence Act to preclude cross-examination of vulnerable witnesses by unrepresented accused and to also prevent the cross-examination of the proceedings regarding this victim.

At the recent Australian Bar Association conference in Melbourne last week, our Chief Justice attended, obviously many of our eminent counsel attended, and I was pleased to be asked to attend and provide a contribution on Indigenous incarceration and also on legal aid in South Australia. I was more than pleased to do so. It was at the invitation of Mr Patrick O'Sullivan QC, who is the current President of the Australian Bar Association. Congratulations to him on an outstanding conference.

As a South Australian, it was even more pleasing to be able to attend and be invited to speak. To have a conference which the federal Attorney-General of Australia opens and which the Prime Minister closes, a two-day conference, is outstanding indeed. I commend others who, in this new initiative for the Australian Bar Association, in this case joining with the Victorian Bar Association, convened the Australian conference where otherwise attention is given to international conferences. Not that they are not wonderful, but I make the point that this initiative by Mr O'Sullivan and his committee has been an excellent one.

The breadth of people who attended, and members of the judiciary and appeal courts, was absolutely sensational. The issue of dealing with vulnerable victims and the opportunity to protect, in a statutory way, self-represented accused was raised at the conference. Indeed, many members of the judiciary made comment on how they manage unrepresented parties generally but, in particular, on this aspect. It is pleasing to see that South Australia is catching up in this regard to make sure that we protect victims in those circumstances.

Of course, we have the other amendments to the Evidence Act, which apparently were requested in the Attorney-General's Department, to alter the current restrictions preventing an unrepresented accused from personally cross-examining a victim to include an offence of recklessly or intentionally causing harm to be consistent with the CLCA. There is also an amendment to the Youth Court Act to provide for the Youth Court judge to be autonomous and not accountable to the Chief Justice of the District Court. This is in direct response to the amendments to the Youth Court and its structure.

The government had previously moved to attempt to remove a District Court judge from being the head of that court and move them to the magistracy. That was objected to by the parliament and we have a compromise. The Youth Court judge remains as someone who has the status of a District Court judge but is autonomous in their own right and will not be accountable to the Chief Judge of the District Court, as has previously prevailed. Ms Penny Eldridge is now the Youth Court judge, and I wish her well in undertaking that responsibility. She has served this court very well in her role in the past.

I come now to the more controversial aspect, that is, the amendments to the Solicitor-General Act 1972. This is an initiative of the Attorney-General, presumably from advice given to him by the Attorney-General's Department. Members ought to be aware that this is a proposal to change the appointment arrangements for the Solicitor-General. The Solicitor-General is a person who is appointed by the Governor on the recommendation, obviously, of the cabinet, and they are currently appointed under the terms and conditions as set out in the Solicitor-General Act 1972.

The Solicitor-General is commonly referred to as the second law officer of the state and they act on instructions from the Attorney-General. Clearly, they advise the state or appear as counsel on behalf of the state, including on behalf of the Crown Solicitor and the Director of Public Prosecutions when required. They have a relatively small budget of about $240,000 a year, so it is a small tight unit. Mr Hinton QC, now Mr Justice Hinton of one of our superior courts, held this position until a few months ago. The position is currently vacant.

I think Mr Hinton appeared for the state of South Australia in the now infamous case in the High Court relating to the disastrous dead Gillman deal, when the applicant unsuccessfully challenged the exclusion of the right to tender for the Gillman land. He took the matter to the High Court and it was settled in April this year and resulted in a new deal, which expires today. That is another matter. The point I make is that the Solicitor-General, on behalf of South Australia, can take up these areas of responsibility to represent the state, and Mr Hinton was involved in that case, as I recall.

The other probably more famous matter was the resolution of the Henry Keogh case resulting in his release, when Mr Hinton again represented the state. When the decision was made in December 2014 that it was unsafe to leave the verdict, there was an announcement by the DPP that there would be a further prosecution; that was later abandoned. Mr Hinton ably represented the state on that occasion and, for the first time in 10 years under his watch, he was able to disclose the existence of a report prepared by Dr Vernon-Roberts, which was critical in the determination of that case.

It finally came to light and he made it available to defence counsel. Unsurprisingly, it became the subject of argument in that case, and to this day, six questions later in this parliament, we still have no answers from the Attorney-General as to why that document had been hidden for 10 years, but good on now Mr Justice Hinton for making that material available. It is very important to remember the role of the Solicitor-General and the significance of the independence of the Solicitor-General.

If one were to try to summarise the great merit that we sign up to in South Australia—that is, of democracy, the importance of the separation of powers and the rule of law—it would be to say that it is absolutely critical that the regime that has the right to make decisions is elected democratically, has the majority of support and is supplemented by that incredible aspect that together gives us the protection of South Australians; that is the genius of the rule of law and its application—that those before the law are equal.

It does not matter how important you are, whether you are the Premier of the state or whether you are a child, you are entitled to the protection of the law equally. As long as you are over the age of 10, you have to line up and be treated equally in our criminal law regime. That is the genius of the combination of those two things that gives us an important protection.

To date, the Solicitor-General has been appointed in a tenured position and upon appointment obviously can act, under instruction from the Attorney-General—not anyone in the cabinet, but from the Attorney-General—on behalf of the state's interests, but there is an independence that goes with that and it is absolutely critical. Similarly, under statute, we give statutory protection against interference of the executive by having a separate Director of Public Prosecutions secured by their own statute, and the opportunity then is minimised for interference, so it is a very important role.

I was quite amused to read of the recent dispute between the federal Solicitor-General, Mr Gleeson, and the federal Attorney-General and the media commentary on a dispute that had arisen between the two. Obviously, there was some antipathy. I am not going to be making a comment about that specifically, but what I would say is that the media commentary was raising the question: why could the Prime Minister not ring up the Solicitor-General and provide instructions and have the matter dealt with? It is for exactly the same reason why that cannot happen in South Australia. The Premier cannot just ring up the Solicitor-General when he feels like it and say, 'I want you to go out there and represent my government on this.'

The statute states that the instructions are exclusively by the Attorney-General, as they should be. When we tinker with these things I like to have a very clear understanding about what the government is doing because, in this instance, today we are being asked to sign up to an amendment to the Solicitor-General Act that will provide for a fixed term of 10 years and increase the age of retirement to 70. The latter is quite reasonable; that is catching up with the modern circumstances, and it is reasonable that that be included.

However, where we deal with providing fixed terms for parties who are independent, then the issues in respect of appointment and how they are to operate become more critical. The government has said that the tenure for the solicitor-general in other states has been a basis upon which some consideration has been given to this. New South Wales and Tasmania have adopted a fixed term with 10 years, but in the Northern Territory it has remained a life-tenured position. Western Australia, the ACT and the commonwealth have seven years; Queensland has five years.

It is an issue which I will explore when we are dealing with the next bill in respect of the appointment of a judicial registrar to each of the Magistrates, Youth, District and Supreme courts of South Australia. Again, that is to have a tenured position. In this instance, the appointment will be effectively by the cabinet on recommendation from the Attorney-General but it will be, as I said, for a fixed period. On my reading of the bill, there is also provision for protection of the entitlements in respect of superannuation, and we have no issue with that.

It is fair to say, and probably for very good reason, especially the last one, that when good solicitors-general have been appointed by government, and they undertake their instructions diligently and are successful on behalf of the state, they might receive favour in the appointment to a superior court—and this one has—that is, the last one we have had. It is an important position. We are really putting in one of our best counsel in respect of litigation as a representative on behalf of the people of South Australia on instruction from the Attorney.

It is an important position, and we will be watching with interest once the bill has passed through the parliament to welcome the next Solicitor-General when he or she is appointed. It is some months now since we have had one. We clearly need one. I think it only has a very small budget, as I have said, so I look forward to that. It appears generally that there have been no issues from the Law Society and other parties in respect of the advance of this, so it will have passage through this house with our blessing.

Mr ODENWALDER (Little Para) (11:23): I rise to speak also in support of the Statutes Amendment (Courts and Justice Measures) Bill 2016. This bill makes various amendments, all of them with the aim of creating efficiencies within our justice system. All these amendments, as the member for Bragg has outlined, are important, but there is one in particular I would like to focus on today. That is the amendment to section 361 of the Criminal Law Consolidation Act to give the courts discretion as to the appearance of a person in custody, whether they appear in person or now by video link.

Deputy Speaker, as you know, our courts already make significant use of audiovisual technology. This is to be commended and this creates real efficiencies within the justice system, and our aim is always to make the courts and our justice system more efficient, more conducive and more responsive to community needs. An appearance by video link means that the defendant does not need to be transported from a prison or somewhere else to the court facility and then back again, often for minor proceedings, and then held in court cells while they either await the matter or simply are transported back to prison to appear another day.

This amendment then means that courts will possess the relevant powers now and in the future to manage their proceedings in the best and most efficient way which is what we all want. While this might seem to be a minor amendment to some, these small steps, as we know, can have a major impact on the efficiency of proceedings within the justice system.

Through its Transforming Criminal Justice project, this government has been focused on both wideranging criminal justice reform and also small-scale reform, both of which can create major inefficiencies. For example, the government has supported the Court Attendance Notification Plus (CAN+) reform, whereby defendants agree to be served by email with necessary documents. This is instead of, generally, two uniformed police officers travelling sometimes long distances to personally serve these people with relevant documentation. As a former police officer, I know firsthand how frustrating and sometimes unnecessary this process can be.

Often the defendant is not home to receive the documents, meaning that the police officers' time has been completely wasted and they have to return the next day and then they have to go back and somehow log this waste of time, and the whole thing could have been done much more efficiently—and can be now. The time of these officers could have been much better spent on the road or on the beat or doing something more practical to keep our communities safe. This was a good measure. It is much easier, obviously, to serve someone by email and, if they are agreeable to that, it makes the system easier for everyone involved and more efficient.

CAN+, a lot like the amendment contained in this bill, is an example of relatively small-scale reform that will make the criminal justice system more streamlined and more efficient, and it should be embraced by this parliament. I commend this amendment and I commend the whole of the bill to the parliament.

Mr TARZIA (Hartley) (11:25): I rise also today to support the Statutes Amendment (Courts and Justice Measures) Bill 2016 and to make a few comments highlighting the proposed amendment to part 7 of the Solicitor-General Act 1972 before it goes to the other place. As we have heard, the bill in question was introduced in late September of this year and it makes a series of changes to certain acts, being the Bail Act 1985, the Criminal Law Consolidation Act 1935, the Evidence Act 1929, the Solicitor-General Act 1972, the Summary Procedure Act 1921 and the Youth Court Act 1993, amongst others. I note that most of these changes are small in nature and they are for efficiency measures, in many respects, to better match up with other acts.

The bill, as we have heard, seeks to make changes to various acts in several ways, beginning with the Bail Act, after requests by the Chief Magistrate, where there is a proposed widening of the class of person who can witness a bail agreement or guarantee of bail to include a registrar or deputy registrar. Further to a request by the Chief Justice and the Chief Magistrate, I note that part 3 of the Criminal Law Consolidation Act 1935 and the Evidence Act 1929 is proposed to be altered as well.

From a request, I believe by parliamentary counsel, part 6 of the Legislation Revision and Publication Act 2002 has been proposed to be amended to allow for recognition of electronic publishing of documents, and we have heard why that would be a good idea. Part 5 of the Evidence Act 1929, as requested by the Attorney's senior legal officer, I understand that there is to be an alteration to the current restrictions preventing unrepresented accused from personally cross-examining a victim, to include an offence of recklessly or intentionally causing harm to be consistent with the Criminal Law Consolidation Act, and so forth.

I want to speak briefly about the alteration proposed to the Solicitor-General Act 1972. We have heard that the Solicitor-General is, in fact, otherwise known as the second law officer of the state, with a budget of some $240,000 or so per year. The Solicitor-General is obviously appointed by the Governor with certain conditions and it is an extremely important role to fulfil for the state. We know that the next Solicitor-General will be appointed soon. We are not sure who that will be, but I have no doubt that it will be a highly qualified member of the state's legal circle. It might even be a barrister from one of the reputable Adelaide chambers, maybe Hanson Chambers, for example. Whoever it is, I have no doubt that they will do a fantastic job.

The Solicitor-General, being a senior statutory officer appointed by the Governor and the second legal officer after the Attorney-General, represents the Crown in civil proceedings and must provide independent high-level work and high-level advice to the Attorney-General. The departmental staff, in their very important work, also support the Solicitor-General. If the serving Solicitor-General is able to do an upstanding job of independently serving the law and the people of this state, I think we need to ask why they should be forced to leave after 10 years. I would have thought that a capacity-based assessment would be better than the imposition of a compulsory retirement.

I believe the role needs absolute unfettered discretion. There cannot be any potential distraction because this is an independent position. I understand that there may be an intention to perhaps cut costs where possible but, after that, what happens? As we have seen from time to time, often people who fulfil this role later end up in the judiciary. My real concern is: what happens when the government is a party to legal issues?

If the Solicitor-General became a member of the bench and the government was included in legal proceedings, that person may be involved, albeit on the bench. We have seen, unfortunately, just by the nature of what the government does, that it often has to go into litigation. This calls into question this concept of whether we should have capacity-based assessment and whether that should be for life or whether this person, whoever it is, should be forced to retire after a certain amount of time.

An independent judiciary is one of the most important—if not the most important—part of our system of governance in South Australia. It provides a balance but also a check on the legislative and executive arms of government. Under the Australian Constitution and the South Australian constitution, the judiciary is in fact independent of the legislature and the executive. The judiciary has obligations to the community to determine cases impartially and according to the law, whether they are between individuals or between a citizen and the state.

To do this, these sorts of positions and the judiciary must be able to exercise their judicial functions and their other functions without interference from the executive or the legislature. I believe the community must be able to approach the courts, even when legal action is against the government, and know that the government cannot interfere in a particular case because judicial independence ensures that the community can conduct legal action without fear or favour.

As the member for Bragg has pointed out, we on this side of the chamber will be supporting this legislation, but I would respectfully encourage the Attorney to rethink this part. We have not been given arguments as to why the bill seeks to provide a fixed term of 10 years. However, I hope that I have provided a little bit of perspective and context as to why some of us on this side have reservations about that. I look forward to following the debate in due course as it progresses through this place and the other place.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:33): I thank those members who have spoken. I will be very brief in my remarks. First of all, I thought it was significant that the member for Little Para said some things about the amendment to section 59IQ. In the fullness of time, this will be recognised as being one of the most significant changes made in recent times because it will, in effect, enable the digitisation and enhanced efficiency of the courts through eliminating a large number of unnecessary personal appearances.

I am very optimistic that, in the fullness of time, many appearances by lawyers and by accused people in the courts will be able to be dealt with by way of audiovisual link rather than by the time-consuming and expensive processes of people being shuttled around the place or sitting in waiting rooms or whatever the case might be. I think this is very significant and, in the fullness of time, it will be seen to be one of the most important innovations we have made.

As to the question about the Solicitor-General, the only issue is about the tenure point, as I understand it. Everyone accepts that the age of 65, which is presently there, is out of touch with contemporary thinking, so the question is: should the person be there, in effect, until age 70 or should they be there on a tenured position? Looking around the country, the overwhelming answer to that question is that it should be on a tenured position. The Director of Public Prosecutions is a tenured position and senior executives of government agencies are on tenured positions. I do not think there is any compromise at all in the independence of the Solicitor-General by reason of there being a tenure attached to that position.

It might be said that if you do not have tenure it may discourage, bizarrely enough, an attorney of the day from appointing a younger, perhaps potentially more vigorous, person to the position for fear of them being there for 30-odd years. It might be that people interested in these sorts of jobs are the sort of people who like to do the job for a while and then perhaps do something else, which often—more often than not, it appears—means taking up a position on the bench.

I am firmly of the view that there is no compromise to the independence of the role of Solicitor-General. I do agree with the deputy leader and the member for Hartley that this is a very important position. I certainly want to place on record the fact that during my period as Attorney-General I have been extremely well assisted and supported by the former solicitor-general, now His Honour Mr Justice Hinton, and I place on record my appreciation for his excellent work.

Part of the reason I have not yet settled upon a replacement for him is that I would like to be able to say to whoever it might be who is an appropriate person for the job, 'Here are your terms and conditions and these have been settled by the parliament.' The sooner this goes through, the sooner I will have a clear position to be able to then take to, I am sure, an excellent candidate. With those few words, again I thank those members who have spoken and I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:38): I move:

That this bill be now read a third time.

Bill read a third time and passed.