Supreme Court (Distribution of Business) Amendment Bill

Committee Stage

In committee.

(Continued from 16 May 2024.)

Clause 1.

Mr TEAGUE: I will just say at the outset the government has referred in this place most recently—before that, the Attorney in another place—to the bill having been the product of a request from the Chief Justice. I quote the Attorney and also the minister in this respect:

This bill is a product of a request from the Chief Justice, who raised issues regarding the inflexibility afforded in the Supreme Court Act 1935 in assigning work to members outside the division of the Supreme Court to which they are appointed.

Those were the opening words of the Attorney in another place on 18 May last year, and words to precisely the same effect were adopted by the minister on 11 April this year when the matter was in this place. For completeness, I refer to that passage of the Chief Justice's letter to the Attorney dated 28 August last year indicating, and I quote:

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

My first question to the minister is: against that background and that context, has the government done any of its own work to interrogate the request and any reasons for it, in terms of the data that is available in terms of the load on each of the divisions and, in particular, what the Chief Justice described in his letter as the 'substantial difficulty' that he experienced in 2022?

The Hon. J.K. SZAKACS: I thank the member for his question. I am advised that the Attorney had no cause to further interrogate outside of the request and views and assertions made by the Chief Justice.

Mr TEAGUE: I think in that regard, albeit in an endeavour to walk through what transpired following the commencement of the debate in another place in terms of the correspondence that had flowed, I also endeavour to give the government an opportunity that was naturally afforded by the passage of time since the matter was before this place for the purposes of the second reading debate—punctuated, as it was, over a period of weeks, if not a couple of months, since the matter came into this place for debate, and that itself not quite a year after the bill was introduced in the Legislative Council. Has the government had any information or any additional information available to it, or sought any, in the context of the debate since its commencement?

The Hon. J.K. SZAKACS: Not that I am advised.

Mr TEAGUE: Therefore, in a couple of different ways, it has been emphasised to a particular extent that at the time that the bill was brought to the parliament in May last year—I credit the Attorney in this respect—it was characterised, I think entirely, as a bill brought to the parliament at the request of the Chief Justice.

Leaving aside the Chief Justice's August 2023 letter for a moment, it remained precisely on those terms when the bill came before this place; that is, at the request of the Chief Justice. This place had the benefit of commencing debate in the knowledge of, or in the context of, the Chief Justice's August 2023 letter. I will be reminded as to exactly what stage of the debate in the other place that that arrived. Perhaps, the minister might be able to inform the committee as to whether or not that letter came after the conclusion of the debate in the Legislative Council. Anyway, it is a matter of record.

But it is the case that, whether or not it was more than referred to in the course of the debate in the other place, it was certainly available to the government for several months before the bill was brought into this place and we do not see it find voice in the minister's contribution in the second reading debate. I think the minister has already indicated therefore that the government's view of the matter has not changed from 18 May 2023, in terms of the reason why it was brought to the parliament, and the government has not been moved to make any further inquiry in light of the Chief Justice's letter and indeed that is what it appears to be on the face of the minister's contribution at the outset of the second reading in this place.

Unless there is anything about that that needs correcting, or if there is anything to add to the record relevantly in that respect, I might just ask more particularly: is there any response of the government to the Chief Justice's letter in August 2023 and, if so, what was the nature of the response?

The Hon. J.K. SZAKACS: I am advised that no response has been made to that correspondence in large part because the correspondence was providing further information subject to the initial request and the bill that we are now contemplating was arrived at because of that original request.

Clause passed.

Clause 2.

Mr TEAGUE: In terms of commencement, the request of the Chief Justice is clear and the reference to the difficulty that was experienced in 2022 is identified by the Chief Justice. In terms of what is on the record now in the context of clause 1, I take it that no other such difficulty, substantial or otherwise, has been brought to the government's attention subsequent to that 2022 difficulty that is referred to in the August letter.

That being the context of where we are at, it is not a bill that has come to the place with a particular urgency to solve a problem such that it has been passed through with any unusual urgency. Is there any indication about any anticipated necessary or consequential change that will be applied on commencement, and is there anything other than an anticipated commencement in the ordinary course? Does the government have any advice about the consequences of commencement in this case?

The Hon. J.K. SZAKACS: I am advised that there is no anticipated deviation from the usual course.

Mr TEAGUE: In those circumstances—and I appreciate the engagement with the Attorney's office in this regard—I am aware of a protocol that is in use, in existence at the moment. The minister says there is no change. Is there intended in that response an appreciation of the existence of that protocol, and is there any expected change in the protocol or otherwise in terms of practice that is ongoing in a way that has been the case before commencement—any particular change to the protocol or otherwise that is anticipated?

The Hon. J.K. SZAKACS: I am advised that the protocol itself is a matter for the judges; however, there has been no advice to suggest that that protocol will differ, but of course that protocol will be established upon the meeting of judges at the passing of the bill.

Mr TEAGUE: I am just looking for it, if the committee might just bear with me for a moment. I am looking for reference in the Chief Justice's letter to it. The minister might be quicker than me. In the middle of the third paragraph of the letter, the Chief Justice refers to the protocol that I was adverting to just a moment ago. I appreciate what the minister says about it being a matter for the court. The new provision, the new 47(1)(a), stipulates that the consultation that is to occur, the subject of that subclause, is to be conducted in accordance with the protocol that is approved by the judges, etc., as we see on the face of the bill. The Chief Justice refers to that requirement. The Chief Justice says:

…the consultation must take place in accordance with a protocol approved by the Judges at a Council of Judges held pursuant to section 16…

While it is not precisely those words, I think the Chief Justice is putting even more emphasis on it. The clause stipulates that it will happen in accordance with the protocol. The Chief Justice is saying that it must take place in accordance with the protocol. As I have indicated, I have seen such a protocol. I understand a protocol is in place already. If I understand the minister's answer, bearing in mind that the particulars of the protocol within the bounds of the statutory requirement are a matter for the court—sure—there is no advice the government has that the protocols are going to instantly change or that we are going to see some change of current practice as advised before and after proclamation.

The Hon. J.K. SZAKACS: That is correct.

Clause passed.

Clause 3.

Mr TEAGUE: For the benefit of the committee in this short bill, we are at the substantive clause and there are a couple of observations to make about that by reference to my contribution in the second reading and just unpacking what the purpose of the substantive clause is and then what it, in fact, is doing.

I might just turn to the government's explanation of clauses that the minister incorporated by leave in the course of the second reading debate. The explanation of clauses, for obvious reasons, does not address itself to anything other than this clause in any substantive way, but it is instructive, in my view, to unpack what, in fact, the explanation provides at clause 3 because it goes to what I was endeavouring to emphasise in the course of my contribution to the second reading debate, and particularly on 16 May and towards the end of my contribution on that day.

The clause is said to allow greater flexibility in the managing of the distribution of business in the court and, in particular, to allow for judges to be assigned from the Court of Appeal to the general division, or vice versa, for the purposes of particular proceedings rather than just for a set period, where the Chief Justice, the President of the Court of Appeal and the judge agree.

If we pause there and take a look at that part of clause 3, we see that that is wholly encapsulated. If not wholly encapsulated by section 47 already, it is certainly wholly encapsulated by the amendment, rather minor as it is, that is contained in subclause (1b). We compare those propositions and at the end of subclause (1b), going back to the explanation of clauses, we see the amendment that goes to the achievement of the desired greater flexibility, which is to introduce the authorising of a judge:

…to undertake such acting duties for a specified proceeding or for a period specified in the instrument of appointment.

Someone might have section 47 in front of them as we consider the matter in committee, but it seems to me, as a matter of substance, that greater flexibility is therefore afforded and there is no doubt that there is a degree of substance in that greater flexibility. At the moment the provision provides for that assignment, and in relatively like terms, to be made for a particular period of time only, whereas the greater flexibility that is afforded by the change is to assign for a specified proceeding.

Just to be really clear about it, subclause (1b) is providing for the familiar neutral arrangement of assignment from one division to the other, back or forth, Court of Appeal to general, general to Court of Appeal, on terms that:

(a) the Chief Justice and the President agree that it is convenient for the purposes of the proper administration of the Court—

(i) that a judge or an acting judge in the General Division act as a judge in the Court of Appeal; or—

vice versa—

(ii) that a judge or acting judge in the Court of Appeal act as a judge in the General Division; and

(b) the particular judge or acting judge agrees to undertake such acting duties,

We then see the substantive change, that that may happen then for a specified proceeding.

If we turn to the Chief Justice's letter to the Attorney in August last year, as referred to in the course of the debate just now on clause 1, we see that the Chief Justice refers to having experienced—in the singular:

…[a] 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 to assigning a judge of this Court to hear the matter.

The Chief Justice then goes on to say:

I had no choice but to first appoint auxiliary judges from the District Court, who for reasons which need not be elaborated on here, were unable to continue with the hearings. Then I personally assumed the management of the case against the objections of counsel who sought that I recuse myself, until one of the Appeal Judges accepted an assignment to hear some of the preliminary questions of law and admissibility which had to be dealt with before the [court] could commence.

Apart from being unpacked step wise, I really emphasise I do not intend to be picking and choosing aspects of this correspondence, or indeed anything that has transpired back and forth, but I think that is a faithful encapsulation of that particular substantial difficulty in 2022.

In addressing the question at clause 1 and indeed coming to questions at clause 2 about any change of practice, change of application to protocol that might flow from commencement, there is nothing that has been adverted to that is further informing either the need or anticipated change.

We can see on the face of that letter that, by permitting the assignment for those acting purposes—and one might see it happening one way or another in future if we are looking to avoid the same or an analogous substantial difficulty occurring again in the future—having the capacity to assign acting duties for a specified proceeding, one like the one to which the Chief Justice adverts, by its nature, if it is long and complex there may be uncertainty as to time, there may be uncertainty as to the life of the preceding iterations and so on. That is not unusual, particularly if a long and complex matter is in question.

It may be that making that assignment for a specified period of time is unduly inflexible, is unduly rigid and impractical. That might be something that has been learned over the short period of time that the provision has been in place. If it was simply that that we were considering amending, then so far, so coherent. Even without the Chief Justice's letter, which is a particularly informative addition and contribution to the explanation as to why we are where we are, in circumstances where it is a request from the Chief Justice and we have got that well and truly ahead of debating here, we can see clearly that there is a way of responding to that substantial difficulty in 2022.

Indeed, I think I have made this observation in the course of the second reading debate. Whether it is the result of human frailty, whether it is the result of what one learns as a practical matter in terms of the management of duties from one division to another over time when something is relatively new, whatever might be the reason for what the Chief Justice describes, it would be one way of addressing precisely what the Chief Justice has described to add that the capacity be there to make that assignment for a specified proceeding.

None of what has just been traversed touches on the second sentence in the explanation of clauses. That stands alone and, as I have submitted in the course of my second reading contribution—and again I draw attention to it now—disconnected from either any evidential cause or, if I could put it this way, to some extent a narrative about the expression of an opinion by the Chief Justice.

To proceed to that second part of the explanation, it is easy to read the two together, but they are really quite distinct. We see then the second sentence as follows:

In addition—

so it makes it really clear this is not connected to the rationale for the first part, for the allowing of greater flexibility—

a new power is inserted for the Chief Justice (after consultation with the President of the Court of Appeal) to assign a judge in the Court of Appeal to hear and determine proceedings in the General Division where the proceedings are complex and there is limited availability of judges in the General Division.

So what we see there (bear in mind, standing alone) is then—and although it is described that way in the explanation of clauses—the bit describing the greater flexibility, which is the subject of subsection (1b) and is first in the explanation of clauses. The additional new power, however, just in terms of the structure of the bill, is the subject of the new subsection (1). So you have to read those in reverse order.

In contrast to the familiar provision that is going to enhance flexibility in circumstances that are otherwise already familiar, it is now—as the explanation says—the addition of a new power. It is for the purposes of assignment of a judge in the Court of Appeal to hear and determine proceedings in the general division (so it is one way: Court of Appeal to the general division). It is clearly a different test, but, rather than what might be the general and familiar reference to convenience for the purposes of proper administration of the court, there is now a new test that is being inserted along with those other differences, namely, that the proceedings are complex, on the one hand (that is, the specified proceeding is complex), and there is limited availability of judges in the general division.

In those circumstances, the addition of the new power that has been described in the subsection is inserted for the Chief Justice to take certain actions in terms of assignment in those circumstances. So one might read the two together and see that there would be a whole lot of circumstances in which you could apply both (1) and (1b) in the same way, together. It might be that it is a matter that is convenient for the purposes of the proper administration of justice: it can be dealt with under (1b), (1b) provides for movement both ways and, provided the President and the Chief Justice agree and the relevant judge agrees, then off you go.

So you can see that you could be left not clear as to which one of those was being applied. There is a higher threshold, if one would, for the application of this additional new power as it is described in the explanation of clauses. Perhaps before going on to seek to identify any bright-line difference between the two, does the minister agree that that is the effect of the explanation of clauses; that is, to delineate between the amendment for the purposes of greater flexibility on the one hand and the addition of the new power on the other, and is there any light that the minister can shed on the circumstances in which that has occurred?

The Hon. J.K. SZAKACS: The question being, 'Does the minister agree?' the answer is no.

Mr TEAGUE: I am not quite sure what the answer was addressing itself to in terms of answering 'no'. It is there on the record for the minister to determine the way in which the minister might inform or otherwise respond to the committee. I flag that it is not clear to me what the answer was intended to be negativing. I concede that there might have been a range of questions included in what I have described. I think I have endeavoured to separate the provision that has provided for greater flexibility on the one hand with the addition of the new power on the other.

If the minister is saying that the answer is 'no' in respect of there being any rationale for the addition of the new power or for there being any information available to government that might provide some evidence for the need of it, then I guess the answer in the negative leaves open to interpretation as to what the answer was intending. If it is an answer that is intending to respond negatively to any aspect of my characterisation for the purposes of the committee's interrogation of the clause, then it might assist the record and the committee to have some elaboration on that. It is a matter entirely for the minister and it is a question as to what might be achieved in the committee process.

In all events, we have a situation therefore where the explanation of clauses, it seems to me, is somewhat revelatory in terms of what is going on in terms of the structure of the bill. So if it is not intended so to separate out those aspects, then it would assist the committee, and it might assist the record, to have that spelled out. The bill, on its face, clearly legislates for the separation of those two matters. The explanation of clauses is somewhat startling in that it would appear to provide a context which the government may or may not adopt. It might be that the explanation of clauses is actually steering us in a way that is too prescribed and it is not intended that way. It might be that the request of the Chief Justice was, in fact, wrapped up, and that the explanation of clauses actually steers us away from that—and erroneously. If that is the case, now is the chance for the minister to say so.

What I have emphasised—and, again, it is not as though it has taken the house by surprise, let alone the committee—is that we have a clear indication that the government has had a request from the Chief Justice, the Chief Justice then being moved to write to the Attorney, in the course of or relatively late in the debate, or at some point, to provide on the public record (because the Attorney has chosen to table the letter) a rationale for the addition of greater flexibility. That can be seen and appreciated.

Not every part of the blow by blow for this particular substantial difficulty is set out in the Chief Justice's letter, for obvious reasons; however, we see something of the practical difficulty about the assignment to which the Chief Justice is referring in 2022.

None of that is going to explain what we otherwise see as observations about what the Chief Justice is now much more freely, much more recently, and not against the background of this substantial difficulty the Chief Justice has described but rather expressions of what is, in the view of the Chief Justice, simply desirable, those parts of the letter, at least, that go to the addition of the new power.

So here we are in the committee stage of this bill endeavouring to provide the parliament with some possible rationale for legislating in line with this additional new power—and if the government will not provide any rationale for it and the Chief Justice will not provide any, I do not want to say rationale, but any evidential basis upon which to set out the need for this additional power, as opposed to the provisions that provide the greater flexibility, then we will be left remaining at a loss as to why the government has satisfied itself that this is a change this parliament ought to legislate.

The Chief Justice has said (and this is continuing on in terms of other observations in the Chief Justice's letter of August last year), first of all, 'My request for these amendments is strongly supported by the judges of this court.' I read that as the amendments that are the subject of the bill, and I have referred to that in the course of my second reading speech.

We have that observation of the Chief Justice and, then, quite clearly adverting to the additional power aspect of reference in the singular, the Chief Justice makes the observation that:

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.

Finally, as to the suggestion that the bill should be adjourned to allow consultation, in my view that is unnecessary, it states, 'The persons who best know the intricacies of listing matters in this court are the judges of the court.' If I have done the Chief Justice a disservice in not drawing particular attention to any other observation that might have been made, I certainly stand to be corrected and invite the minister to do so. But those are observations, as I have described, that are all of the nature of expressions of opinion in the broad, in principle.

To some degree, in terms of references to the judges of the court, they are a mixture between references to what the Chief Justice needs to be able to do to make a final decision, in the Chief Justice's view, coupled with observations that those who best know what the court needs in terms of listing are the judges of the court.

Okay, so far as the observations about what the judges of the court are best placed to navigate, I might say that is in the context very much of a letter responsive to the profession's expressions of concern. It is making observations about judges of the court in large measure by reference to the relatively limited utility of observations of the SA Bar and the Law Society when it comes to these matters, because only the judges of the court best know the intricacies of listing matters, with the bottom line point being made by the Chief Justice that, in his opinion, only the Chief Justice sufficiently understands the needs of the court as a whole to be able to make that final decision that is the subject of the power in subclause (1).

Again, I come back to the difference between what is the subject of subclause (1) and (1b). One is left to speculate as to why, in terms of subclause (1), we do not see mutuality as to the movement from one division to the other and vice versa—it is a one-way direction—and why that is necessary to apply at the direction of the Chief Justice, ultimately. If one is then speculating, one is left to say, 'Alright, it is a circuit breaker of some sort. Although it precedes (1b), it might be said to be applying—and bear in mind there is a protocol in existence that is also the subject of the bill—consequential to the process in (1b) being considered where it is relevant, that is, where Court of Appeal movement to the general division is up for grabs in (1b).

Also subsequent to—and we know, consequent on the application of the (1a) protocol, if I recall it correctly—in many circumstances for the purposes of this bill you find yourself working backwards. If you could solve it via (1b), as I read the Chief Justice's observations about the way in which the court and its members are considering these things, then you would presume—I would certainly hope—that, where you can solve it via (1b), you solve it via (1b).

You then have to, we know, apply the protocol in (1a). I call it a circuit breaker, because it appears then that this additional power, the one that is standing alone in the terms of the explanation of clauses, is going to be applied in many circumstances after (1b) and (1a). So you curiously work backwards. It might have perhaps made more sense in some ways if it was in completely reverse order. You are left—

The CHAIR: Member for Heysen, I do not wish to interrupt but you have one minute left on this particular clause. If you wish to ask a question, you might want to get to that. You have had 15 minutes.

Mr TEAGUE: Thank you, Chair. Just to be clear then about the question, in the context of the previous one, is there any rationale that has been given for the clause applying in the way that it does one way—that is, Court of Appeal to general division—and is it correct to describe the clause as being one that would be applied as a circuit breaker, ordinarily in circumstances where (1b) and (1a) have been exhausted, as it were?

The Hon. J.K. SZAKACS: I can assure the committee and the house that I will not take my full 15 minutes. The answer to the second part of the member's question is that is not how the government would characterise it. As for the first and large part of both the question and the member's protestations, we are not in the business of speculating, as the member has hypothesised that he is doing through his contribution. I note the extensive reiteration of the substantive points that the member has made both through his very long contribution in the second reading as well as his 30 minutes on this clause.

As for the substantiation of the Chief Justice which the member draws into question, it certainly is not the position of the government to query the bona fides of the Chief Justice. We are comfortable with the Chief Justice's correspondence, which substantiates his request, and I would urge caution of the opposition in questioning the bona fides of the Chief Justice's substantiation.

Mr TEAGUE: I ask the minister to withdraw that last observation. It is an outrageous observation to suggest that there is a questioning of the bona fides of the Chief Justice. That is certainly not what has been raised, and I object to any such characterisation and I invite the minister to withdraw it.

The CHAIR: The member has taken objection to it, and I think it is a subjective test, so it might be quicker just to do it and move on.

The Hon. J.K. SZAKACS: I withdraw.

Mr TEAGUE: In terms, then, of the operation of the clause—that is, the terms of subclause (1)—and comparing it to the way that (1b) works, that you can move judges one way or the other from the Court of Appeal to the general division and vice versa, as we see in (1b)(a)(i) and (1b)(a)(ii) respectively, I have not seen any, and I might have missed it, rationale for the departure in (1) from that movement both ways, and I did not hear it in the minister's answer just now either. There might have been an intent in terms of the answer to provide some sort of context in terms of the government's attitude in the overall remarks about what the government does and does not do in interrogating the Chief Justice's request. If so, then I missed it, and others in the committee might have missed it as well.

I put this in some sort of context. The number of Court of Appeal judges that are members of that division is considerably fewer than the number of judges in the general division—that is clear—and there is a different workload in terms of volume as well. I think I have adverted in the course of the second reading that of the current members of the Court of Appeal, we understand Justice Lovell is on full-time long service leave and on his way leaving next year, and that leaves four members. We, therefore, in looking at the list and listings out in the Court of Appeal, see listings out several months.

I have not checked this morning or in recent days, but I think I anticipated in my last contribution a couple of weeks ago that the listings in that particular division, to put it in a general sense, are not leaving any wriggle room for listings in that court already, and so the circumstances in which there is this one-way provision, the exercise of the additional power operating one way only, draws further attention to that particular set of circumstances in terms of the duties that the court is facing just at the moment. That is only an endeavour to put some sort of practical indication before the house and, again, before the committee, to try to understand what we are actually responding to.

It would appear that the proposition on the face of it could be made on a day-to-day basis that the Court of Appeal has a full load. It is sitting on a day-to-day basis one member down, and it is loaded up to the max. I do not say that in terms of, 'Well, that's the case. Everyone is busy and everyone gets on with it,' and I am sure that an observation of that nature might be made in terms of the duties of those judges in the general division from time to time as well, but we are hardly coming along to this debate—and, again, I emphasise this is in circumstances where nobody has adverted to some data that tells us something different. Certainly, I would be very glad if the minister is willing to take on notice matters of data in terms of the workload of both the Court of Appeal and the general division.

I say that particularly in circumstances where the minister has not availed himself of department officials who are not here today, and I understand that might mean that it is not necessarily straightforward to get his hands on that straightaway. He is ably assisted, but I do not suggest that that data may be necessarily immediately to hand. Nobody is in any way contradicting what I am suggesting anyway, and they have had a month or so to do that.

I have just given this indication as to the extent to which the Court of Appeal has a full book and is working hard, and if not in somewhat unusual circumstances of the extended leave of one of its members. We have, against that, not only the additional power now being vested unilaterally in the Chief Justice, for reasons that are not evidenced perhaps in the same way against the background of experience as the provision for greater flexibility, but we are seeing that that is to be applied one way.

If all of that is just a complete mystery to the government, and the government says, 'Well, we don't know. We have no idea what's going on in the court,' and if the only rationale from the government's point of view is what we see on the face of the record in the course of the second reading speech—that, as we have heard from the Attorney in the other place and we have heard from the minister in this place in a couple of mirroring contributions that say that this is coming at the request of the Chief Justice—if the response of the government is, 'Don't ask us; we don't know. We are just doing this at the request of the Chief Justice, and we don't have anything else to tell you about it, but that's good enough for us,' then, in the context of being told my contribution might have run for a while, in terms of the second reading speech, part of it was at pains to separate out what is, on the one hand, the business of this place in terms of the responsibility for legislating in the public interest, the interest of all South Australians, for the facilitation of the proper administration of the courts on the one hand, and what are, if you like, to put it in terms that the minister is recently familiar with, operational matters on the other hand.

We do not go delving into operational matters when it comes to how important agencies in the interests of all South Australians operate, but we do have an interest, a necessary interest, in ensuring that the structures, particularly when it comes to the establishment and structure of divisions of the Supreme Court of this state that operate, have a responsibility to interrogate how and why, and for what purpose, those structures will be applied in an operational way.

It may be that I am just boiling down to some form of emphasis. The minister has had an opportunity to answer the question in the context of my previous question, and I think I understand the response to say broadly that, 'The government is satisfied that the request of the Chief Justice is what it is, and we are legislating accordingly. Nothing more to see here. Don't ask us.'

If that is the response, and I think the minister responded, as well, to say that the government would not describe—the minister seemed to think that what I was describing in my last contribution to be an exercise in hypotheticals in characterising the subclause (1) additional power provision as a circuit breaker. I do not mean it pejoratively. But I do not think the minister adopted that description and sees it as a matter for the court as to how it might apply it. I can take that on board, and I think it probably is. It would certainly be a matter for the Chief Justice to determine how these tests are to be applied. I am sure the Chief Justice is perfectly capable of navigating that in an operational way.

It is the case, is it not, that we are left with a situation where, at least in terms of subclause (1), there is nothing to inform us as to why the clause operates one way, as it does, and how the clause would operate in terms of its test as distinct from the test in (1b).

The Hon. J.K. SZAKACS: I can best advise that subclause (1) is not mutual, because the Chief Justice is head of the Supreme Court. The Chief Justice is responsible for the administration of the court and allocates cases and distributes judicial workload. This is true of every jurisdiction and is reflected in the relevant legislation. The Chief Justice is the spokesperson and representative of the judiciary and the court in its dealings with the executive government and the community. The Chief Justice has an extensive role as the head of the court as well as the head of the judiciary in this state. The Chief Justice has the ultimate authority for determining the distribution of judicial workload. This may be best achieved by a consultation and consensus with the judiciary and the court. Administrators take into account individual judges' interests and abilities.

Mr TEAGUE: Just a point of clarification: it may be that the minister misconstrued what I meant by 'one way'. It is one way in terms of movement from the Court of Appeal to the general division, not one way in terms of who is calling that shot. So the distinction is general to the Court of Appeal. The Chief Justice is on both, so the Chief Justice is able to make the call in respect of both. The movement is one way in (1), and it is two ways in (1b). I do not know if the minister would like to make some further contribution.

The Hon. J.K. SZAKACS: I will take that as a statement rather than a question.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (12:13): I move:

That this bill be now read a third time.

Mr TEAGUE (Heysen) (12:13): I might just offer some brief words of contribution on the third reading, in light of the committee process we have just completed, to report that observations or concerns that I raised in the course of the second reading debate about the distinction between on the one hand the provisions for the application of greater flexibility, the subject of the bill, and the addition of a new power on the other remain as perhaps adverted to in the course of the second reading.

In the course of the committee process and particularly interrogating clause 3, the substantive provision in the bill, I again endeavoured to draw out the difference between an additional capacity for assignments between the general division and the Court of Appeal to be made as may be required for the purposes of the proper administration of the court to be enhanced, if one will, by a provision that would allow such an assignment to occur for acting duties for a specified proceeding. I adverted to the Chief Justice having explained what might be practical rationale for that to occur in circumstances where it may be unsuitable for an assignment to be made for a particular defined period of time, as is the way in which the section 47 provision works at the moment.

One can readily see that that is a change that provides for greater flexibility. It might also be seen against the background of what the government has at all times described as a bill brought to this place at the request of the Chief Justice and rising no higher and no lower than that and without any adoption of some purpose that the government has in mind in terms of bringing it here. One can see, by doing a bit of work in the interrogation of what has actually transpired since the advent of the Court of Appeal, that there is some rationale for the change that we see at subclause (1b). That, unfortunately, is not the case in relation to, as the explanation of clauses describes it, the standalone addition of a new power, which is inserted so as to provide for the Chief Justice to assign a judge in the Court of Appeal to hear and determine proceedings in the general division.

One might, as I think I have done in the course of the committee process and I adverted to it of course in my second reading remarks, say that if it is the case that the Chief Justice is, as the Chief Justice says, the only one who 'sufficiently understands the needs of the Court as a whole to be able to make that final decision'—that is the Chief Justice's observation in his letter of August last year—why not enhance that power by making it apply mutually in the same way as (1b) does? That is just a curiosity and we have seen no elucidation of that, that I could tell, in terms of the committee. It is a curiosity; it stands in contrast from (1b) to (1) in terms of it being a one-way process. But it is what is.

That is apparently the structure requested by the Chief Justice. The government has chosen to act, as it has indicated, in accordance with the request of the Chief Justice, and the government has not provided any elucidation of the matter, really, at all. That is as it is, so I just put it to the house in terms of where we stand as the result: that must be an open matter that is, in my view, left in an unsatisfactory state as to why that provision, let alone the power itself, would apply to the process only one way.

I have referred to it in my second reading contribution and again, because I understand it is still the present state of affairs—the relative workload of the Court of Appeal that is publicly available and that we are aware of—I just ask the question. It seems at odds with what one might expect. If the power is not going to be mutual, why is it not, for example, a power that applies for the provision to relieve the Court of Appeal of some of its workload in circumstances where the general division has capacity and the Court of Appeal is fully occupied, or if not fully occupied then overburdened? Why would it not be the case that the power of the Chief Justice is to assign members of the general division to hear matters in the Court of Appeal?

Mutuality is a question that is left unanswered; indeed, why the whole thing is not structured completely the other way around is also left as an open question. I suppose a way to answer it might be to note that Court of Appeal proceedings, generally speaking, are not about the occupation of lengthy periods of time in the hearing of a trial with all of the uncertainties as to how the hearing of evidence might go and how long trials take. Generally speaking, appeal proceedings are matters of submission by counsel and the court is in a position to determine the length of time that a hearing will take. At least there is that substantive difference in terms of the way it occupies the court's physical resources over time.

Leaving aside the necessity for time for judges to prepare reasons for judgement and so on, there is that difference, particularly in circumstances where the Chief Justice adverted to the 'substantial difficulty' in 2022 and the desirability of assigning a judge for a specified proceeding, then there is a clue to the different nature of the proceedings that are heard in those different divisions.

But we have seen no attempt to provide an elucidation by the government. The government has, it would appear, not even asked the Chief Justice why the approach, what is the situation with the general division in terms of its workload over the time since that substantial difficulty was experienced in 2022, much less for the minister to come into this place, or I think in another place, to say, 'Well, it is the different nature of the work.' Subclause (1b) provides for mutuality because it is a sort of general provision that might be something that the judges of the court can determine from time to time as they need to in terms of the disposition of business, but in terms of the imposition of the standalone additional new power there is just no rationale at all.

I am doing what I can to give the government an opportunity to provide any such rationale, or to pass on any further indication that might come from the court, particularly from the Chief Justice. If there is one step back from washing your hands of a matter altogether, it is the adopting of a structure, as it were, in the debate that says, 'As responsible minister, I am here bringing legislation to the house at the request of a responsible head of jurisdiction.'

Many months pass, much interrogation of the request ensues, all of it on the public record, and pretty much an entire year later the exact same rationale for the bill is put when it is introduced into this place and the government takes on the responsibility to persuade and elucidate members of this place who are endeavouring to do the work that they need to do responsibly and the exact same rationale is put. It is pretty close, it seems to me, to the government washing its hands of the matter so far as the substance and rationale of it is concerned.

The committee stage, in particular, will provide a public record of that attitude of the government for the purposes of future reference, if not serving to elucidate members of the house and indeed those South Australians who are following the process now and seeking to be informed as to why the government has moved in the way that it has. I hope that I have set this out comprehensively in the course of my second reading debate.

There is a tension, of course, between what the head of a jurisdiction ought to do in terms of taking responsibility for the disposition and management of business in an operational sense on the one hand and what the parliament's proper role is in terms of legislating for the distribution of business in the court on the other.

It is, in my view, a proper and important taking of responsibility in this place that, where we are legislating for new structures to be applied in terms of how business is directed in the court—it goes to a matter that is central to how the two divisions of the Supreme Court function vis-a-vis each other and particularly in circumstances where the division, the Court of Appeal, has been operational now for some several years but not so very many—where the house is called on to legislate in this way, the house gives its own consideration to the matter and that the government, frankly, does a bit better than simply indicating to this house that it is moving that the house support this bill at the request of the Chief Justice.

I will just make this final observation, and that is that so keenly is that tension appreciated that, in circumstances of this nature, there is an exercise of judgement involved in terms of how the parliament interrogates matters of business of the court, and so much so that it was initially a matter that might have been regarded as a matter of consensus that attracted no real difference of opinion expressed by anyone, from the Chief Justice to other members of the court and members of the profession and so on, but particularly in circumstances where, in the course of debate in another place—and I emphasise commencing around a year ago—there was not, in fact, such broad-based consensus that was expressed outside of this place.

Indeed, fairly strong views were expressed by the two leading professional bodies—in terms of the legal profession—over the course of those months sufficiently that the Chief Justice was moved to write to the Attorney in terms that have been traversed in this place. It just underscores the need to interrogate what might be the source of a difference of view, what might be the rationale for making the change and what might be the government's view about the merits of the particular provisions that are being presented to the house. I regret to say that I do not regard either the house or myself all that terribly better informed except insofar as the government has clearly been given an opportunity to elucidate and it has elected to say no more, so there we are.

Bill read a third time and passed.