Bills

Supreme Court (Distribution of Business) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 May 2024.)

Mr TEAGUE (Heysen) (12:00): I rise to continue my remarks, as it were, at the adjournment last evening. I propose to conclude my contribution to the second reading debate in terms of addressing the context in which the bill was introduced to the parliament and has reached the point of being considered in the second reading debate in this place, more or less exactly a year after it was introduced in another place.

I had reached the point yesterday of having highlighted what might serve most succinctly to illustrate concerns expressed in parallel, and in terms, in a way coinciding, from the point of view of time, expressed by the Law Society and by the Bar Association respectively. Those concerns, as far as I have zeroed in on them, are going, in their own words, firstly, in terms of the expression of the President of the Law Society, to what he describes as 'little information about any inefficiencies in case flow management that the amendment is intended to address'. That was on 25 August 2023. Also, about a week before that, by the President of the Bar Association, by a letter dated 17 August, which concludes in those rather more emphatic terms, but first highlighting, and I quote:

No data, episode or example has been brought to our attention where the current arrangements in the act have led to inefficiencies or affected case flow management.

I was at pains, concluding at the point that we did yesterday, to note that the Chief Justice had been moved to write to the Attorney in the days following those two letters. While I didn't go so far as to characterise the Chief Justice's letter in terms of being a response to those letters, I think it is fair to describe the letter as responsive to the debate more broadly, because at least nothing much turns on that. The Chief Justice certainly refers to the 17 August letter of the President of the Bar Association, reflecting in turn on a previous letter that had been sent the previous month to the Hon. Connie Bonaros and the Hon. Frank Pangallo, members of another place. The Chief Justice then goes on to address those matters that are raised in the letter.

For those who are following along, again I draw attention to the two pieces of work that the bill is addressing itself to. Let us be clear: on the one hand the introduction—and this is by reference to the government's explanation of clauses, which is about the clearest indication of what the government sees as being achieved by the bill. On the one hand we have the greater flexibility piece, as I am calling it—that is the first part, the greater flexibility piece—and on the other hand we have what is described in the explanation of clauses as the additional new power. So there is greater flexibility and new power.

Greater flexibility, let us bear in mind, is all about the addition of the capacity, in circumstances of agreement between the Chief Justice and the President, to take the appointment of a relevant judge into a new frame. At the moment, 47(1) provides for that appointment to be made for a specified period of time. What the greater flexibility piece does is to state 'or for a specified proceeding'. Bear that in mind as I get to the Chief Justice's observations about the experience that has been encountered. That's the greater flexibility piece: all in terms of consensus.

If the Chief Justice and the President agree that a judge or an acting judge in the general division act as a judge in the Court of Appeal, or vice versa—that is, a judge or acting judge in the Court of Appeal act as a judge in the general division—and the particular judge or acting judge agrees to undertake those acting duties, then the Chief Justice by instrument in writing authorises the judge to undertake such acting duties, under this amendment, for a specified proceeding or for a period specified in the instrument of appointment. I am not raising any particular difficulty with that. Mutuality leads, on the face of that amendment, to the capacity for either a specified proceeding or a specified period of time. Bear that in mind by reference to the explanation of clauses. That is the whole greater flexibility piece.

Separately, the addition of the new power, which is really very much the focus of the contributions from those learned stakeholders the Bar Association and the Law Society, gives the Chief Justice that unilateral capacity—certainly after consultation, certainly in the context of a protocol, but nonetheless the addition of a freshly articulated unilateral power—which is the source of the concern.

Let's bear in mind, by contrast to the 47(1) power as it stands at the moment, and by contrast to the (1b) power as it would be, this is a one-way process. It is a one-way process that provides for the unilateral power for the Chief Justice to direct traffic from the Court of Appeal back to the general division, and the criteria are different.

That is, in terms of (1b), we have mutuality as the key for an appointment-based descriptor and we have introduced flexibility about the scope of that appointment, the purpose, whereas the standalone power is of a different nature altogether, and apart from what I have described as the one-way aspect of it, it is premised also on notions of there being a requisite satisfaction on the Chief Justice's part in relation to the complexity of a specified proceeding—so we have sort of got an element of specified proceeding introduced there—and, secondly, the limited availability of judges in the general division. Alright, that might be said to more or less speak for itself.

So you have a nod to availability but you have then got this sort of question of complexity coming along as well. It is that which is the whole descriptor of that part, so it can be looked at in those two quite discrete ways. You can introduce greater flexibility on the one hand, as the explanation of clauses claims, and you can do that while retaining mutuality as the bill proves, and as the explanation of clauses sells—great. What you are left with is this sort of gaping chasm on the other hand about the addition of the new power.

I was at pains yesterday, as I was at pains a month ago, to talk about the reason why we are here talking about this in the parliament in terms of legislation, and the reason why we are not simply talking about some sort of oversight of something that might otherwise be wholly and solely the subject of a protocol that is dealt with among the judges of the court, because this is about the legislative structure of the two divisions of the court. As the Chief Justice rightly says—of course, he rightly says—there is one jurisdiction over which the Chief Justice presides.

I turn then, importantly because it is instructive and, at the moment, it is the only case that has been made for the whole bill, so I am really highlighting—and keep in mind folks, that clear distinction between those two elements of it: greater flexibility on the one hand; additional power on the other. What does the Chief Justice say to the Attorney? The Chief Justice is clearly alive to the debate and refers to the previous correspondence.

I am going to do my best to highlight it. The whole letter is in the public domain; it has been laid on the table in the other place. To the extent that I am editorialising it, that can be the subject of criticism. I am not doing so to slice and dice the Chief Justice's observations but simply to make some observations that arise from them. The Chief Justice addresses himself first to:

…the SA Bar's contention that there is no interstate statutory provision or convention to the effect that the President of the Court of Appeal 'is removed' from decisions on the assignment of Appeal Judges to the General Division.

The Chief Justice goes on to say:

The submission, so put, is calculated to avoid acknowledging that there is no statutory provision anywhere in Australia which requires the Chief Justice to obtain the consent of the President of the Court of Appeal to the assignment of an Appeal Judge to hear a trial in the General Division.

I will pause there. That may be so. We are of course dealing in circumstances where section 47(1) is a modern phenomenon in terms of a Court of Appeal having been established in recent times in this jurisdiction. The counter proposition might be put: if it is not so articulated anywhere else, then why is not the better proposition to simply delete 47(1) altogether and let the court do what the court would otherwise do, which, as many observers have said by reference to convention, is to not remove the president from the decision?

As I say, to my observation, the Chief Justice's submission there rises no higher than to say that this point is not articulated in the statute anywhere else. If that is a problem, then why isn't there some proposition to delete 47(1) altogether? Alright, we can navigate that. He goes on to say:

The current provisions in the Supreme Court Act 1935 (SA) (the Act), requiring the consent of the President, which were introduced by the previous government with the support of the SA Bar, are unique in that respect.

Okay, so far, so good:

No sound reason for the adoption of those peculiar provisions has ever been provided.

Okay, point taken:

Indeed, when I have discussed the provision with Chief Justices and Justices of Appeal around Australia, they have expressed surprise at the inclusion of that provision.

Focus on the statutory aspect of that. It is articulated in the statute, okay. If that is a unique articulation of a principle, okay. I draw an analogy to the electorate fairness clause that we had in this state for the better part of the last 30-odd years. It was there as an articulation of a principle that we all hold to be true; that is, more or less, statewide fairness in terms of an electoral outcome.

If you have a majority of the electors in the state voting for a particular party, that ought to translate in that group having a majority on the floor of the parliament. That is a statement of principle which, uniquely in South Australia, because of the frustration of decades—both sides of parliament well and truly aware of it—led to such a response that you introduce some attempt to articulate that principle in statute. That was a unique attempt to articulate the principle.

For reasons to be debated at another time, there were some in the parliament who saw fit to remove those particular words from the statute. But the commission and those who have been moved to interpret the situation abiding since have not just said, 'Oh, well, that principle goes up in smoke.' On the contrary, they have said, 'Of course the principle abides, just not that attempt to articulate it in quite so slavish terms.' The same thing might be said about 47(1) as it is at the moment. It is an answer to the Chief Justice's observations.

If it is so unique that it is spelled out in 47(1) in those terms and if that is a cause of surprise by heads of jurisdiction around the place, alright, just have the argument in terms of whether 47(1) is there or not. The underlying point about the removal of the President from decisions about the allocation of tasks from one division to the other is abiding. Nothing turns on that; it goes to what sits below it as a matter of practice. So far, so good. He goes on:

In any event, contrary to the assertion, and as you know—

this is a letter addressed to the Attorney—

the proposed amendment does not 'remove' the President from the process of making an assignment. In fact, the President's involvement will be legislatively protected. The proposed s 47(1) of the Act provides that the Chief Justice may only assign a judge of the Court of Appeal to hear a matter in the General Division 'after consultation with the President of the Court of Appeal'. Moreover, s 47(1a) of the Act provides that the consultation must take place in accordance with a protocol approved by the Judges at a Council of Judges held pursuant to s 16 of the Act.

These are all parts that we have traversed in the course of the debate. Of course, that is true as well. He continues:

The SA Bar's letter ignores those provisions.

I will leave aside differences of view or observations about what is ignored, what is deliberate, what is intended and all the rest of it and just go to the facts in terms of the statute, because that is our job here in the parliament: to look at what is actually legislated. The Chief Justice goes on to say:

It is incorrect to suggest that the proposed amendment 'has potential to undermine the operation and integrity of the Court of Appeal' when the protocol to which the Chief Justice must adhere is one under the control of all of the Judges of the Supreme Court.

That is the Chief Justice's view of the matter. He is entitled to his opinion. It goes on:

The unspoken premise of SA Bar's letter is that the Court of Appeal and the Supreme Court are two distinct courts.

Here I disagree. I do not observe that to be the underlying premise of the letter, but nothing particularly turns on it. The Chief Justice takes the opportunity to make the point that there is only one Supreme Court that is recognised by the constitution; that is true. He continues:

It is the Supreme Court which has a General Division and an Appeal Division, the principal judicial officer of which is the Chief Justice.

The Chief Justice then makes this observation. The Chief Justice says:

It is not workable to allow the head of a division of any court to veto the rostering decisions of its principal judicial officer.

I have talked about the absence of empirical evidence, of data that would underpin or justify what is going on here. In the context of that observation, I just highlight that nobody, including the Chief Justice by this letter, has made any suggestion that any such thing has occurred. There is no suggestion that any such thing has occurred.

It is passing curious to say that it is not workable to allow the head of a division of any court to veto the rostering decisions of a principal judicial officer. It might beg the question, but there is certainly no suggestion that that has occurred, let alone any indication that the absence of the additional power is somehow causing some degree of difficulty. I am going to get to the flexibility point that is then addressed in the balance of the letter. The Chief Justice goes on to say:

The President's letter claims that the SA Bar is not aware of difficulties faced by the Court in allocating a judge to hear a trial in the trial division. Pointing to examples when Appeal Judges have sat in the General Division when it has been convenient for them to do so does not prove that there have been no such difficulties.

Here is where there is an indication of events; it is about as much as what we have heard:

Experience has demonstrated that the division of the Supreme Court has reduced flexibility in the assignment of judges and accordingly reduced the capacity of the Court to hear matters expeditiously.

That might be said to be harking back to something resembling the existential argument. As I have said, the Chief Justice has been clear about his opposition to the establishment of the division in the first place, but that is not what we are here debating. So what are we going to do about flexibility? What we are going to do about flexibility is provide for the terms upon which there may be movement from one division to another both ways following mutual agreement. It goes on:

My request for this amendment [has been] made after experiencing substantial difficulty in 2022 in assigning a permanent judge of this Court to hear a long and complex matter in this Court. The statutory provisions were a substantial impediment in assigning a judge of this Court to hear the matter.

This goes to the flexibility point. If the substantial difficulty that was faced was about having to zero in on a period of time, then, great, let's add a provision that says once you have your mutuality—and vice versa, division to division—then, for the very circumstance that the Chief Justice talks about where you have a long and complex matter that might imply that the period of time involved in it cannot be described with certainty, it might be an improvement to talk about a specified proceeding. But, again, there is nothing raised about some need to overcome a lack of mutuality, far from the exercise of some veto that is even raised, yet there is this now superimposition of the standalone unilateral right one way for there to be this move.

So, as I have said a variety of times, the government is at pains to say this is not about some existential debate about the Court of Appeal. I do not read the Chief Justice to be rising any higher in his remarks than what he has actually set out on the page. What the Chief Justice has talked about is having a lack of flexibility. He has referred to the undesirability of being subject to some sort of hypothetical veto, but there has been no instance of it that has been adverted, there has been no indication in terms of the circumstances of the court in which there has been some sort of deadlock or difficulty, even anything at all that has been raised.

Insofar as there is this long and complex matter that has been referred to, that is readily answered, it would seem, by the specific addition of the capacity to identify such a proceeding. But we see the reference to complexity—as well as length—that finds voice only in the additional unilateral power criteria. You have to establish complexity to exercise the unilateral right. There is no such articulation in the mutuality provision, and so it should be, in my view, precisely for the reason that you do not want to limit the Chief Justice's capacity, together with the other judges, to make the calls that might be necessary in terms of the division of work within the court.

So we have this sort of intermingling of language in these passages of the letter in circumstances where it is important to be clear about what the bill is doing vis-a-vis greater flexibility on the one hand and the addition of a new power on the other. The Chief Justice then goes on. He describes the circumstances in which he had no choice in this particularly long and complex matter first to appoint auxiliary judges, and then there were problems with that—I am paraphrasing—and in the end the Chief Justice had to step in and it was less than ideal.

None of that turns on the addition of the unilateral power—none of it. At the very most, one might say the addition of subsection (1b) could have covered it all in a heartbeat, and otherwise the circumstances the Chief Justice there describes about this long and complex matter are very much the sorts of things that are a combination of learning from experience and, to the extent that human frailty is involved—if it was, in terms of the availability of individuals—then dealing with events as they occur, none of which are said to be capable of being overcome by the exercise of this standalone unilateral power. I am emphasising this because if there were such an issue then there has been absolutely ample opportunity for anybody to come out and say so. The Chief Justice then goes on to make this observation:

My request for these amendments is strongly supported by the judges of this court.

We have that. I understand the reference to 'these amendments' to be to the whole lot, to the whole bill. That is just a statement of fact. Then the Chief Justice goes on:

That support was given after substantial consideration and discussion. As a result of that discussion, all the judges of the court accepted they have an ethical duty to put the needs of the court as a whole as paramount.

Of course; nothing controversial about that either. After working through what we know about experience, what we have heard from the Chief Justice in terms of experience and how we are to understand the explanation of clauses, we are left in a situation where at least insofar as the insertion of the additional power is concerned, the unilateral power, the subject of (1) and (1a) to an extent, we have really nothing more than that one statement of fact from the Chief Justice:

My request for these amendments is strongly supported by the judges of this court.

The Chief Justice requests it. We know that from the government: in the other place and in this place. And we know from the letter that the Chief Justice supports it and has spoken to circumstances, including a mingling of both aspects, both the flexibility point and the additional power point, and then has told the Attorney that these amendments are strongly supported by the judges of this court. The Chief Justice goes on:

The proposed amendment carefully limits the Chief Justice's power to those occasions when the assignment of an appeal judge is necessary because of the unavailability of a judge in the general division. Only the Chief Justice sufficiently understands the needs of the court as a whole to be able to make that final decision.

Again, all of that might be taken as need not be controversial. One could have an argument about levels of understanding and so on. I submit that none of that takes away from the underlying importance of mutuality. As the Bar Association has put it, the desirability not to remove the President from the process and if the focus is to be on flexibility in terms of what those judges are capable of agreeing on and therefore the Chief Justice is empowered to authorise in terms of the undertaking of acting duties, so be it. But nothing greater really turns on that observation. The Chief Justice then says:

Finally, as to the suggestion that debate on the bill should be adjourned until our consultation with stakeholders, it is my view this is unnecessary. Persons who best know the intricacies of listing matters in this court are the judges of this court.

So he is referring back to the statement of fact earlier in terms of the support of the judges of the court. The Chief Justice continues:

Necessarily, the SA Bar can only have a limited understanding of the pressures of exigencies which apply in distributing the court's workload. The final responsibility in performing that task lies with me as Chief Justice.

He concludes:

I do not have many years left to serve in the office of Chief Justice. I do not wish to leave to my successor statutory provisions which, in their current form, provide an unworkable division of responsibility, and cause of friction, in the important task of assigning Judges to attend to the work of the Court in a way which best serves the community.

Again, I might end in terms of a point of agreement with the Chief Justice. No-one would wish the Chief Justice to leave to whoever the successor might be a circumstance in which the division was unworkable or in which there was a particular resolvable cause of statutory friction, but there is no indication of such unworkability or friction that is somehow derived from the absence of a new 47(1) and (1a) regime.

There is extraordinary opportunity for that to come to light, really and truly, but there is no evidence of it. We all want to talk about the extraordinary legacy and the longstanding quality and productive capacity of all of our democratic institutions, but surely the court stands very much among those institutions in this state which we are and ought to be particularly protective of and proud of. We are not in circumstances that even remotely resemble what has been described in the conclusion.

I completely share the Chief Justice's sentiments: nobody would like to administer, let alone leave to a successor, circumstances of unworkability or resolvable causes of friction. No case has been made for this change. No case has been made for the change.

Here I am, sort of bumbling along, and I am not necessarily the most capable or incisive observer of every last element of what goes on, but I hope I have made myself sufficiently clear in this respect. We have two things going on in terms of the proposal that is before this parliament. The parliament has an obligation to interrogate the matter in terms of what it is willing to legislate, against evidence, and it is right and proper that the parliament take very seriously what is put by the court in doing so. But it is the responsibility of legislators to consider what is the case for legislating in circumstances where the court needs to be best able to go about undertaking its tasks and responsibilities, let alone broader administration and so on.

It is my submission that without more, 47(1) in particular is bad law and should not be passed by this parliament. To that end, it is a matter where if adjournment would facilitate that and if the government wishes to support an adjournment of the debate for that purpose, I would certainly welcome it, and, as I have always done, I will maintain my willingness to work towards improvement and supporting legislation to that end where that case has been properly established. Unfortunately, as things stand in relation to this bill, and in particular the application of that second element—first, in terms of the order of the structure: new section 47(1)—that case has not been made and should not be supported.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (12:40): I thank the member for his contribution of nearly four hours, I think on last count, to this very short bill. I do note that we will support a short adjournment after seeking the support of this place on the second reading speech.

To sum up the member's closing remarks on seeking an adjournment once entering committee to a date to be determined in the coming days of sitting, we support that simply for the efficient and timely use of business in this place. We are not supporting an adjournment in a reconsideration of this bill or reconsideration of additional amendments.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Progress reported; committee to sit again.