Supreme Court (Court of Appeal) Amendment Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 15, page 10, lines 18 to 23 [clause 15, inserted section 19B(e)]—Delete paragraph (e) and substitute:

(e) all causes and matters which are required by the rules of court, or by the express provision of any other Act, to be heard or determined by the Court of Appeal.

No. 2. Clause 21, page 12, lines 18 to 24—Leave out the clause

Consideration in committee.

The Hon. V.A. CHAPMAN: I move:

That the Legislative Council's amendments be agreed to.

The government accepts amendments Nos 1 and 2 as presented from the Legislative Council. In doing so, I am pleased to support the passage of the bill accordingly with these amendments. We have debated it in this house and the other place and welcome the amendments passed in the other place, which I place on the record were at the request of the Chief Justice of the Supreme Court of South Australia and were moved by the government in the other place.

This bill marks a new era for the South Australian judicial system and is a reform that I am incredibly proud to have developed and to see pass the parliament today with members' approval. In South Australia, the highest state court is the Full Court of the Supreme Court. For criminal matters it is referred to as the Court of Criminal Appeal. The Full Court and Court of Criminal Appeal comprise two or three Supreme Court judges sitting together. Appeals from the Full Court and Court of Criminal Appeal, if appealed as such, go on to the High Court of Australia.

Under the current structure, I should also mention that since 1986 we do not have another option to go to the Privy Council in Britain, for good reason: we have passed the Australia Act and we are truly independent, but we have a very important appellate structure that operates. At present, the judges of the Supreme Court work on a rotational basis in the Full Court hearing civil appeals and in the Court of Criminal Appeal hearing criminal appeals. They also sit as a single judge to hear serious civil and criminal cases, the latter incorporating cases such as murder.

Many members of the legal profession in South Australia have raised with me that South Australia should establish a separate dedicated court of appeal, as has been done in many other jurisdictions. If members take the opportunity to read the contributions in the other place, it is abundantly clear that they have also presented those same arguments to members in the other place. It is disappointing that the Labor Party in opposition have opposed this move. Clearly, they have not been persuaded by these presentations, but it will not be too late for them to come on board and recognise the significance of having a dedicated separate court of appeal, as has been done in other jurisdictions, and the benefits thereof.

The bill establishes a court of appeal, following in the footsteps of other states, bringing South Australia to the forefront of the Australian legal fraternity and opening the doors for South Australia to be one of the best jurisdictions to practise and preside over law. It would not have escaped the attention of most of our members here—if it has, I will refresh your memory—that, since Federation and the establishment of the High Court of Australia, South Australia has never been represented on that forum. It is time that we are considered and respected in our legal system and that we are restored to a level of confidence where we will have that opportunity.

As Attorney-General, I consider South Australia to be a very important part of our federation. We are a major economy and we are going to be a stronger group at the table under this government, but it is also important that we have a mature system where we have the opportunity to promote our own for consideration on the highest court in the country. I will commit the time that I am here as Attorney-General to give every opportunity to South Australians to do that.

The draft bill sought to amend the Supreme Court Act 1935 to change the structure of the Supreme Court. This includes establishing the Court of Appeal as a division of the Supreme Court, with a separate general division for all matters that are not to be heard by the Court of Appeal. Again, this is consistent with interstate models.

The Chief Justice of the Supreme Court will remain the principal officer of the Supreme Court, including the Court of Appeal, and the President of the Court of Appeal is responsible to the Chief Justice for the administration of the Court of Appeal. The jurisdiction of the Court of Appeal will include the existing jurisdiction of the Full Court of the Supreme Court of South Australia and the Court of Criminal Appeal. The Court of Appeal will be constituted by at least two judicial officers, with the potential for three judges to hear matters.

Given that the change to the court's structure is currently in the parliament, the decision regarding appointments to fill the vacancies is being considered simultaneously. In the meantime, to assist the court to manage its workload, 10 judicial auxiliary appointments to the Supreme Court have been made for the period 1 July 2019 to 30 June 2020 and a further three from 5 September 2019 to 30 June 2020. This follows two further recent appointments to the District Court, which I hope members have read about and are pleased to note. Certainly, they have been warmly received by members of the profession and also, of course, my own Attorney-General's Department.

I appreciate that who populates courts may not have a wide spectrum of interest in the general community, but it is important that we have good men and women to take up these areas of responsibility to ensure that we maintain a standard of our courts that retains the public confidence in them. Let me say to South Australians who may not be listening to this debate and may never read it: someday, at sometime, you or someone you love may need to have a dispute resolved in a court, and/or come before a court as either the victim or the accused. You will be looking to be dealt with fairly, in accordance with the law, and to be protected through that process. It is very important that we maintain that, and in that of course is this very important appellate role.

While the Labor opposition have actively opposed this proposal, I do not really understand their objection, other than to suggest that the matters raised by the Chief Justice were sufficient for us to stay as we are. I would suggest it is a very anti growth, anti South Australian approach for the Labor opposition to take that view. To leave South Australia stagnant in this area of reform, which is clearly needed, as has been voiced widely, is not wanting to be the best we can be.

We as a government are not shy in progressing these reforms. We want the best for South Australians and, in that, we want the best structure to ensure that we have an effective and efficient state system, and one which is the best it can be. It is not just a question of South Australia being one of the only jurisdictions left without a court of appeal. Obviously, the Northern Territory does not have a court of appeal; I think they have five Supreme Court judges. They do not have a district court; they only have a local court. I think they have a population that would fit into the MCG.

You obviously need to compare apples with apples and not apples to oranges. South Australia has had the benefit of looking interstate to New South Wales, Victoria, Queensland and Western Australia, which are very significant economies and populations within the federation. It has been very successful for us to consider the more efficient structures within their superior court processes.

We found, on assessing their introduction of appeal courts, and the reviews that were done of them, that there was an increase in the speed of delivery of judgements, shorter hearings and, overall, that they produced consistent judgements of a higher quality. That is not my assessment; that is the assessment of those of a level as high as now-retired High Court judge Michael Kirby, who undertook a very comprehensive assessment of the New South Wales structure. In terms of South Australia's need for, in particular, improving the time taken to deliver judgements and improving the quality and consistency of such judgements, judgements are a primary reason for pursuing this reform.

Quite a number of examples were presented in the other place, not only by stakeholders such as the South Australian Bar Association and Legal Services Commission. One example was highlighted by the Hon. Connie Bonaros in her contribution. A member of the profession had presented to her that they elect to litigate matters in the Adelaide registry of the Federal Circuit Court even though, in this example, it cost $20,000 more, because they were looking to receive a greater level of consistency and what they perceived to be reliable judgements received in a timely manner. That is something we just cannot ignore.

The exodus of our solicitors making decisions, presumably in conjunction with counsel where it applies, to litigate matters in another registry of another jurisdiction rather than come to our own is a disturbing trend. I suggest we have to resurrect that and ensure that we restore confidence in the profession that is advising South Australians as to their legal matters, including where they might seek a dispute resolution and to litigate where appropriate.

It is just not acceptable to leave it in a situation where that exodus continues. I suggest that to do so would be a failure on behalf of the government, and indeed us as a parliament, if we were to allow that to continue. We have very highly skilled and highly trained persons already on the Supreme Court, including our Chief Justice, of course, and the judges, who to some degree are almost wasted if we do not fully utilise those skills and work to complement their number so that they may continue their work. With the passage of this bill, that will now have the flavour of considering skills for those who have appellate capacity.

We have looked at the options to make our state's justice system the best it can be. We are confident that this progress in the reform that is being proposed will help us to make sure that we can be the best we can be in the establishment of a court of appeal. The bill returns to the House of Assembly having been approved by the majority of the Legislative Council. I am pleased that there has been comprehensive support in the other place. I am not going to say anything further to that, otherwise it reflects on a vote, but it is well known in this house what the Australian Labor Party's position has been.

As I have indicated, the incorporation of the amendment came as a result of requests from the Chief Justice. It effectively deals with the jurisdiction of the Court of Appeal to hear and determine matters. The provision of the bill relevantly includes all clauses and matters required to be heard and determined by the Court of Appeal by rules of the court made by any three or more judges of the Court of Appeal with the concurrence of the Chief Justice. The amendment under consideration, which we have indicated we support—and I am speaking in support of the motion of its passage—removes the reference to the rules needing to be made by any three or more judges of the Court of Appeal with the concurrence of the Chief Justice.

The additional jurisdiction of the Court of Appeal would still be able to be conferred by the rules of court, but it would be rules made under the existing section 72 of the Supreme Court Act 1935, which simply provides for the rules of court to be made by any three or more judges of the Supreme Court without distinction as to whether they are judges of the Court of Appeal or otherwise. The addition therefore speaks for itself.

But, in acknowledging this as a request of the Chief Justice, I place on record my appreciation to both the Chief Justice and other judges of the Supreme Court who have presented their views in relation to this reform. I respect them. Obviously, I have indicated that the government does not agree with a number of them, but nevertheless I will continue to work with the Chief Justice and, at his request, to meet with any judges of his court to progress matters, such as the composition of and venue for the accommodation of a court of appeal with the passage of this legislation.

Already, the Chief Justice has been very helpful in providing advice on the early draft of this legislation. He made a valuable contribution at that stage as to how it would best be drafted and then, during the course of consultation to the broader legal community when proposals came forth, obviously we conferred again and he was able to indicate whether he felt those were necessary enhancements of the structure that was being proposed. That does take considerable work.

It is fair to say that members of the Courts Administration Authority have also been part of that, including in the provision of advice on the cost of judges and in looking at the expenses, support and resources that are required for judges. These are all important matters, including data, for the consideration of the government to ultimately bring to life a court of appeal on the passage of this bill.

I also urge members, if they are not aware, to take note of the High Court's development at the Supreme Court, which is underway and which was initiated by the previous government. It includes a very significant capital improvement to the Gouger Street Supreme Court complex, which, for members who are not aware, sits primarily in duties relating to Supreme Court work. Over the years, it has in fact done a number of other tasks and has had other forums accommodated there, but I will make a contribution on that on another day. I just make the point that there have been substantial capital improvements.

This month, new court 11, as it is known, is being occupied. Indeed, there are other new courts that have been completely rebuilt. If members are interested in following the Electoral District Boundaries Commission, they might have noted that it sat last week and commenced its deliberations in one of the new courts. It is great to know that that is now underway and that there is a refreshed facility at the Supreme Court complex. I would also like to let members know that the refit and expansion of a number of jury trial courts is already underway at the—

The Hon. S.C. MULLIGHAN: Point of order, Chair: I realise that we have been recalled for important business today, but I do feel that the Deputy Premier has not only strayed from the topic that we are here to speak on—that is, the Court of Appeal amendment bill—but is now seeking merely to gobble up time today, beyond what is provided for in the standing orders.

The CHAIR: I certainly uphold the last part of your argument, member for Lee—that is, in committee we ordinarily have 15 minutes for a contribution, and at the moment we are tending towards 25, I think.

The Hon. S.C. Mullighan: It's most unlike her, sir.

The CHAIR: Ordinarily, the Attorney is very good at keeping to time. She has moved the amendments and is speaking to them but will close her debate soon.

The Hon. V.A. CHAPMAN: Of course, I could just move the first amendment and then have another 15 minutes. I am sorry that the member for Lee has not appreciated the significance of this, but there is a question of where the Court of Appeal is going to sit. So, in explaining our superior courts, the Supreme Court currently sits, including all the appellate work—

The Hon. S.C. MULLIGHAN: Point of order: it appears the Deputy Premier seems intent on defying your ruling, Chair.

The CHAIR: I have indicated to the Attorney that she has gone beyond the usual 15 minutes, and I have asked her to bring her contribution to a close. I remind her that she moved two amendments at the outset.

The Hon. V.A. CHAPMAN: Correct. For those who are interested, I indicate to the committee that, with the upgrade of the jury courts underway, I have commenced discussions with the Chief Justice—indeed, he has taken me on a site visit—on where he might propose accommodation of the new Court of Appeal. And so, with that—

The Hon. S.C. MULLIGHAN: Point of order, sir: perhaps I could suggest, if the Attorney continues to defy your point of order, that you recall the house so that we can have the Speaker consider naming her.

The CHAIR: Member for Lee, thank you for your third point of order. I have asked the Attorney twice to close her debate, so I am expecting that she will do that now.

The Hon. V.A. CHAPMAN: In this exciting time of a new era, I commend the work and contribution of all members, including the member for Lee, even though I did not agree with him in his contribution. We will see these as positive reforms. I move that the amendments be accepted and commend the bill to the house.

The Hon. S.C. MULLIGHAN: It appears that third time is a charm for the Deputy Premier. I rise to speak on the amendments that we have received from the other place to the Supreme Court (Court of Appeal) Amendment Bill 2019. It is unsurprising, I suppose, that the government has been pushed to the position where it is being forced to consider and adopt amendments to this bill, particularly at the request of the Chief Justice, to make the government's bill more workable for what is being imposed upon him and his fellow justices—presumably against their will, given that they have all indicated publicly that they oppose this reform.

I also indicate that the Labor opposition continues to oppose this reform but will not stand in the way of these amendments. We are happy that at least the Chief Justice should have some improvements to the regime that he is now to be forced to live with as a result of these changes. The Deputy Premier advises the house that she cannot understand why the opposition would oppose this measure: it is because there has not been sufficient justification for it.

As we have pointed out, both here in the second reading contributions during the passage of the bill through this place and also in the other place, there have been some vague assurances of efficiency, which I presume have been unable to be substantiated by the government, because we have had data placed on the record, cited from the Supreme Court's own annual report, showing ongoing improvements with them dealing with their case load, and in particular the ongoing trend of reduction in the matters pending before them, particularly as it relates to Supreme Court specific matters and appeals regarding both criminal and civil matters.

I understand that the Attorney is a passionate advocate for this reform, because even in today's contribution on these amendments we are getting new justifications for this reform. According to the lengthy contribution that we have just enjoyed from the Deputy Premier, there are some new benefits that will arise from this. Apparently, the appearance of this Court of Appeal in the make-up of our judicial system will give us a much better opportunity of having an appointment to the High Court.

What a spurious claim. If ever there were a more spurious claim, I would look forward to being presented with it. You do not really have to understand too much how Australia's federal political parliamentary system operates to understand why we have not had a High Court appointment. That is because since Federation we have had a succession of largely Eastern States based attorneys-general appointed in the federal parliament, and they have continued the trend of appointing, exclusively, High Court judges from jurisdictions other than South Australia.

I should add, though, that you do not have to ask too many questions of members of the South Australian legal profession to hear stories of people who have been contacted by a federal attorney-general's office asking whether they would be happy to throw their hat in the ring for a federal appointment, even a High Court appointment, and then, of course, when they are willing to do so being once again let down—decade after decade, as we have seen in South Australia—only to have a crony of that particular federal attorney-general appointed to whatever that particular role is. South Australians are used as—

The Hon. V.A. Chapman: That's disgusting.

The Hon. S.C. MULLIGHAN: Well, it's not disgusting; it's true. It is absolutely true.

Mr Duluk: Who is the crony?

The Hon. S.C. MULLIGHAN: Who is the crony?

Mr Duluk: David Cox.

The CHAIR: Interjections will cease, and the member for Lee I think is tempted to respond but will not.

The Hon. S.C. MULLIGHAN: I am interested to hear that David Cox was a federal attorney-general. That is news to me. There we go—perhaps his knowledge of the federal parliament does not extend quite that far.

We have had that argument today, from the Attorney-General, not placed anywhere else because it is of course a spurious argument. Secondly, we have had our heartstrings tugged by the Attorney-General, saying, 'Please, South Australians, just imagine you or someone you know might appear before the judicial process, and wouldn't it be in your interest to appear, eventually if required, before a specific court of appeal as proposed in this bill rather than the existing arrangements?' Well, spurious? I described the first claim as tenuous at best, but the second as completely bogus at best.

But then we had the third claim put by the Attorney that the emergence of this new Court of Appeal would stop the exodus of solicitors heading interstate from South Australia to work over there. Really? Well, I am interested. I am interested in the dozens and dozens and dozens and dozens of young South Australians—I should not say young South Australians; predominantly young South Australians but not exclusively young South Australians—who graduate from our law schools in South Australia. Apparently, they will stay here because of this shining beacon, this great Gatsby-like light across the lake that appears to them, of an appointment to the Court of Appeal.

I actually thought many of these solicitors were just interested in finding a job and seeing the large part of the legal profession in South Australia, the commercial legal practices, already burdened with the enormous weight of graduates who flood each year out of our law schools, struggling to accommodate them. I am not quite sure that that argument can possibly stack up either. If we put those three new arguments to one side, we are back to what was offered up originally by the government, and that is some vague commitment towards efficiency.

We have heard that those people who are best placed to provide an opinion on this, people with direct and contemporary experience in hearing matters before the Supreme Court, let alone appeal matters, either civil or criminal jurisdiction, do not support this. Unfortunately for us, we were not able to hear from the government and from the Attorney why the Chief Justice and all members of the current Supreme Court did not support the establishment of this Court of Appeal. It was only after those of us who made a second reading contribution had concluded our contributions and after the Attorney made her closing remarks that she deigned to provide the parliament with the advice from the Chief Justice. I think that is outrageous.

I think it is deliberate that the Attorney withheld that from this place. Of course, the Attorney is right to say that the Chief Justice recognises that the parliament has the right, if it wishes, to establish such a court. However, I would have thought that we would have all been better off understanding the concerns of the Chief Justice and his associates—his colleagues, I should say, not to confuse the employment descriptors of people who work in the Supreme Court—fellow justices of the Supreme Court. I would have thought that we would have been better off knowing what their concerns were. It was only after we were able to make our contributions—indeed, form our position—that we were able to hear what those concerns were, valid concerns and unaddressed concerns as they are by the government, about this Court of Appeal.

Much has been made about the need, because of the volume of matters that go through other jurisdictions, for us to have a court of appeal, but that also undermines the Attorney's argument about why we need a court of appeal. We have a much smaller state with a much smaller population, a much smaller case load and a much smaller demand for appeals.

There was also no real rebuttal or attempt to address concerns about how the practice of the court would be experienced by justices in the Supreme Court. There are valid concerns from the Chief Justice about how many should be available in this Court of Appeal, that there should be at least five not only to enable an ongoing rotation through cases but also, for those who have just heard cases, to step back from hearing cases so that they can write their judgements. Without that, these justices are likely to be placed under considerable demand and stress to get these matters out.

At this juncture, we should recognise that these judgements are extremely important. It is extremely important that these justices have the time they need without unnecessary distraction to get these judgements right because they are likely to be used as precedents in further similar matters if required or will be used as the basis of a consideration of those same matters for, potentially, the High Court. Making sure they have that time for these judgements is absolutely essential. This was largely unaddressed.

However, I was pleased to hear that the Chief Justice did say that it is important to maintain some capacity to rotate justices who will sit on this Court of Appeal, if established, through the court generally. I would have thought that the cognisance of how a case or trial is run would benefit the justice sitting in this appeal jurisdiction so that they are familiar, contemporaneously, with the conduct of a matter when they are considering whether there are valid grounds for appeal. Likewise, it might also assist a justice presiding over a trial to have that understanding of how the conduct of such trials is likely to be interpreted if it should ever proceed to a proceeding before a court of appeal.

There was also the matter of the additional costs required to provide for additional justices if they are to be appointed. I know that the Attorney is quick to talk about the refurbishment of the courts currently underway, an initiative commenced by the former Labor government and funded by the former Labor government—one of the many capital works projects for which, I notice, the current administration is claiming credit.

There was also concern about whether the prospect of being appointed to an appeals court makes the prospect of a judicial appointment less attractive to some members of the bar. While we have an assurance from those opposite, particularly the Attorney (I cannot remember whether or not this was canvassed by the member for Heysen), it may not be a matter that they will ever need be concerned with, certainly not in the Deputy Premier's case. That was also a valid concern that remains unaddressed. In the eighth and final matter considered by the Chief Justice, there is no recognition of the downward trend in pending matters before the Supreme Court.

For those unaddressed reasons and for the flimsy, tenuous and spurious arguments put forward by the government in favour of this, we do retain our opposition to the bill. As I indicated, we are willing to see these amendments go through because at least they add some improvements at the suggestion of the Chief Justice to this change.

The CHAIR: Before I call for any more speakers or put the question, I want to clarify standing order 364 in relation to time limits in committee. The standing order states:

In Committee …

1. a Member other than the Member in charge of the Bill, motion or amendment may not speak more than three times on any one question, nor for more than fifteen minutes on any one occasion;

Given that is the standing order, and the Attorney was in fact in charge of the bill, she was within order. We have clarified that and you stuck to your time, member for Lee, so well done.

Motion carried.