Statutes Amendment (Attorney-General's Portfolio) Bill

Second Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (12:34): I move:

That this bill be now read a second time.

I am pleased today to introduce the Statutes Amendment (Attorney-General's Portfolio) Bill 2024. From time to time, an Attorney-General's portfolio bill is required to rectify minor errors, omissions and other deficiencies identified in legislation committed to the Attorney-General. Given the minor or technical nature of these amendments, it is often more efficient to deal with such matters in a single omnibus bill rather than in a separate amendment bill for each act.

The bill makes amendments to seven acts within the Attorney-General's portfolio. This includes changes to the Courts Administration Act 1993, the District Court Act 1991, the Environment, Resources and Development Court Act 1993, the Judicial Administration (Auxiliary Appointments and Powers) Act 1988, the Legal Practitioners Act 1981, the Magistrates Act 1983 and the Supreme Court Act 1935 to replace and update references to the title of a Master of the Supreme Court or District Court to Associate Justice and Associate Judge respectively.

The bill also makes separate amendments to the Legal Practitioners Act to abolish the appointment of King's Counsel in South Australia and to expressly extinguish the prerogative power of the Crown to make such appointments.

Amendments to the title of Master: turning to the substance of the bill, parts 2 to 8 of the bill (excluding clauses 31 and 32) make amendments to seven acts to replace and update references to a Master of the Supreme Court to Associate Justice and a Master of the District Court to Associate Judge. These amendments have been made at the request of the Chief Justice and Chief Judge following a resolution by the judges of the Supreme Court and the District Court to discontinue the use of the title of Master in their respective jurisdictions.

The Chief Justice has advised that the title of Master is an anachronistic term that does not give any indication of the nature of work performed by the Masters of the Supreme Court. Moreover, it is considered to be an inappropriately gendered term. The Chief Judge has expressed similar concerns in relation to the use of the title of Master in the District Court.

South Australia is the only jurisdiction to retain the title of Master. The title is no longer used in Queensland or Victoria. In Tasmania, New South Wales and the Australian Capital Territory, the title of Associate Judge is used. I am advised that Western Australia is also in the process of phasing out the appointment of Masters.

While these amendments are limited to changes in terminology only, they nonetheless present an opportunity to modernise and bring South Australia into uniformity with the majority of other jurisdictions, which have already discontinued the use of the title Master. Importantly, the existing powers and functions performed by the Supreme Court and District Court Masters, as well as their existing terms and conditions of appointment, will remain unchanged.

Amendments to abolish the appointment of King's Counsel: I now turn to the other amendments in the bill, which propose to amend the Legal Practitioners Act to abolish the appointment of King's Counsel. Historically, at common law, the position of King's Counsel (KC) or Queen's Counsel (QC) was recognised as an office under the Crown, commonly bestowed as a mark of recognition of eminence and excellence in the legal profession.

In 2008, the then Rann Labor government, at the request of the then Chief Justice, the Hon. John Doyle, ceased the appointment of Queen's Counsel following a consistent trend across Australian jurisdictions to discontinue the use of the QC designation in preference to the Senior Counsel (SC) title.

In 2019, the former government determined to reinstate the appointment of Queen's Counsel in South Australia. In 2020, the former government enacted the Legal Practitioners (Senior and Queen's Counsel) Amendment Act 2020, which inserted a new legislative process into the Legal Practitioners Act for the appointment of Senior Counsel and Queen's Counsel. These changes came into effect on 26 November 2020.

Under the current provisions, a legal practitioner appointed as Senior Counsel may make an application to the Attorney-General for recommendation to the Governor to be appointed as King's Counsel. Where an application is made, the Attorney-General must recommend to the Governor that the legal practitioner be appointed as King's Counsel, and the Governor may, by notice in the Gazette, appoint a legal practitioner as King's Counsel. There is currently no discretion for the Attorney-General to refuse an application for appointment or to make a recommendation to the Governor against the appointment of a Senior Counsel as King's Counsel.

The Labor government when it was then in opposition sought to move amendments to the former government's legislation that were ultimately unsuccessful. At the time it was noted that many of the arguments that were presented in support of reinstating the office of Queen's Counsel and King's Counsel appeared to be economic concerns. In particular, it was noted that no evidence was put forward to support the assertion that Senior Counsel are at a commercial disadvantage when competing for international briefs because the SC title is less well known. The government considers this to be especially true now that the title of Queen's Counsel, used throughout the 70-year reign of Queen Elizabeth II has been replaced by the title King's Counsel. Indeed, despite these claims of economic disadvantage, the majority of jurisdictions retain the Senior Counsel title and have not elected to return to the use of King's Counsel. This includes the state with the nation's largest independent bar, New South Wales.

In addition, parliament was also advised that the Chief Justice wrote to the former Attorney-General on 2 October 2018 expressing his strong opposition to the reinstatement of Queen's Counsel and King's Counsel. He suggested that a return to the QC or KC title would seriously weaken the independence of the legal profession and judiciary from the executive. In particular, his honour observed that the appointment of QCs originated at a time when the Crown was more directly involved in the exercise of judicial power and the appointment of a QC is nothing more than a conferral of executive favour.

Given this, it is the government's view that it is appropriate to abolish the appointment of King's Counsel in South Australia to bring South Australia in line with most of the country and update the language used in our judicial system. To that end, clauses 31 and 32 of the bill amend the Legal Practitioners Act to repeal the statutory provisions that currently allow for appointment of King's Counsel and to expressly extinguish the Crown's prerogative so that no future appointments of King's Counsel can be made in South Australia.

Under this approach, Senior Counsel who have already been appointed as King's Counsel will be permitted to retain the use of KC postnominal. Legal practitioners seeking future appointment as Senior Counsel will, if appointed, be entitled to use the SC postnominal. The current process of appointment of Senior Counsel by the Supreme Court will remain unchanged.

While the proposed amendments in this bill may be minor, they present an opportunity to bring South Australia into the 21^st century. In so doing the measures in this bill will achieve greater consistency with the rest of Australia with respect to the titles that are used within our judiciary and the legal profession. I commend the bill to the chamber and seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Courts Administration Act 1993

3—Amendment of section 27A—Interpretation

This clause amends section 27A of the principal Act to substitute references to a Master with references to an Associate Judge or Justice, as the case requires.

Part 3—Amendment of District Court Act 1991

4—Amendment of section 3—Interpretation

This clause amends section 3 of the principal Act to provide that a reference to a Master in any other Act or legislative instrument will be taken to be a reference to an Associate Judge, and substitutes references to Masters with references to Associate Judges.

5—Amendment of section 10—Court's judiciary

6—Amendment of heading to Part 3 Division 2 Subdivision 2

7—Amendment of section 12—Appointment of other Judges and Masters

8—Amendment of heading to Part 3 Division 2 Subdivision 3

9—Amendment of section 14—Leave

10—Amendment of section 15—Removal of Judges and Masters

11—Amendment of section 16—Retirement of members of judiciary

12—Amendment of section 20—Constitution of Court

13—Amendment of section 24—Transfer of proceedings between courts

14—Amendment of section 29—Issue of evidentiary summons

15—Amendment of section 32—Mediation and conciliation

16—Amendment of section 43—Right of appeal

17—Amendment of section 44—Reservation of questions of law

18—Amendment of section 46—Immunities

19—Amendment of section 51—Rules of Court

These clauses amend the principal Act to substitute references to Masters with references to Associate Judges.

Part 4—Amendment of Environment, Resources and Development Court Act 1993

20—Amendment of section 9—Magistrates

21—Amendment of section 11—Masters

22—Amendment of section 15—Constitution of Court

23—Amendment of section 26—Issue of evidentiary summonses

24—Amendment of section 30—Right of appeal

25—Amendment of section 36—Immunities

26—Amendment of section 48—Rules

These clauses amend the principal Act to substitute references to Masters with references to Associate Judges.

Part 5—Amendment of Judicial Administration (Auxiliary Appointments and Powers) Act 1988

27—Amendment of section 2—Interpretation

This clause amends the principal Act to substitute references to Masters with references to Associate Justices or Associate Judges, as the case requires.

Part 6—Amendment of Legal Practitioners Act 1981

28—Amendment of section 5—Interpretation

This clause amends section 5 of the principal Act to provide a definition of Associate Justice and repeal the existing definition of Master.

29—Amendment of section 14I—Establishment of Board of Examiners

30—Amendment of section 89—Proceedings before Supreme Court

These clauses amend the principal Act to substitute references to Masters with references to Associate Justices.

31—Amendment of heading to Part 7

This clause amends the heading to Part 7 of the principal Act to remove reference to Queen's Counsel.

32—Substitution of section 92

Proposed section 92 is inserted into the principal Act

92—No further appointment of King's Counsel etc

Proposed section 92 provides that the power of the Crown to appoint a legal practitioner as a King's Counsel or Queen's Counsel is abrogated. It is further provided that this does not affect the existing appointment of legal practitioners as King's or Queen's Counsel.

33—Amendment of Schedule 3—Costs disclosure and adjudication

This clause amends clause 41(2) of Schedule 3 of the principal Act to substitute a reference to a Master with a reference to an Associate Justice.

Part 7—Amendment of Magistrates Act 1983

34—Amendment of section 22—Certain members of the judiciary may assume magisterial powers

This clause amends the principal Act to substitute a reference to a Master with a reference to an Associate Justice.

Part 8—Amendment of Supreme Court Act 1935

35—Amendment of section 5—Interpretation

This clause amends section 5 of the principal Act to provide a definition of Associate Justice and substitute references to a master with references to a master or an Associate Justice, as the case requires.

36—Amendment of section 7—Judicial officers of the court

37—Amendment of section 8—Qualifications for appointment as judges and masters

38—Amendment of section 9—Appointments to the court

39—Amendment of section 11—Acting judges and acting masters

40—Amendment of section 12—Remuneration of judges and masters

41—Amendment of section 13A—Retirement of judges and masters

These clauses amend the principal Act to substitute references to masters with references to Associate Justices.

42—Amendment of section 13H—Pre-retirement leave

This clause amends section 13H of the principal Act to substitute references to masters with references to a person or an Associate Justice, as the case requires.

43—Amendment of section 14—Certain common interests do not disqualify

44—Amendment of section 48—Jurisdiction of single judge, master, etc

45—Amendment of section 49—Questions of law reserved for Court of Appeal

46—Amendment of section 50—Appeals

47—Amendment of section 65—Mediation and conciliation

48—Amendment of section 72—Rules of court

49—Amendment of section 110C—Immunities

These clauses amend the principal Act to substitute references to masters with references to Associate Justices.

50—Amendment of section 119—Suitors' funds to vest in master

This clause substitutes a reference to master in the heading of section 119 with a reference to registrar.

51—Amendment of section 121—Liability of Treasurer for default of master

This clause substitutes a reference to master in the heading of section 121 with a reference to registrar.

Mr TEAGUE (Heysen) (12:42): I rise to make a contribution to the bill and to address it. I think it might be convenient to describe it in terms of being a bill addressing really two matters, the first of which is indeed a matter of uncontroversial change. Leaving aside any unnecessarily loaded descriptors of what has been a longstanding role in our state's courts of Masters who oversee the interlocutory stages of process in both the District and Supreme courts, the changes to nomenclature are changes that might elicit not much more than a shrug, I suspect, in terms of the bulk of the population, and the new terms and changes that are proposed in terms of Associate Judge and Associate Justices are appropriate and those changes appropriately recognise the roles.

I do emphasise that the two Masters of the Supreme Court are, in fact, judges of the court as well and they are described that way. Judge Dart and Judge Bochner serve in the capacity as the Supreme Court's two Masters. The work that they do in jurisdictions where there is not the application of a docket system, as there is in the Federal Court, for example, is important in terms of dealing with the day-to-day management of the court lists, and it is an indispensable function.

Before I proceed to perhaps recognise and describe that important work—because this provides the opportunity to do so—it would be, I think, remiss to proceed too much further to deal with the bill without fairly clearly and loudly highlighting that the method of the government in this respect is curious, to say the least. We have just heard a fairly brief contribution in the second reading debate from the minister responsible in this place, the Deputy Premier, describing this bill as being one of those routine catch-all general portfolio bills, and stating that it is appropriate to do a whole variety of things in portfolio bills.

The fact is that it is doing two things, the first of which takes up a fair amount of space, because it is changing references in a whole range of different bills in different places, as you necessarily do when you change the name of the way in which you describe a judicial officer from one thing to another. There is a bit of page filling, and I have no difficulty with that being described as amenable to a general portfolio sort of descriptor.

You have that on the one hand in a bill that, just to illustrate that point, runs to 51 whole clauses. I have referred to the fact, I think, a few times in recent times that this place ought to have a bit more self-respect than it sometimes puts on display in terms of its characterisation of matters that are brought before it and in terms of the sort of interrogation that this place is—and I include members on the government benches in this regard—willing to and properly ought to be putting to the executive in terms of scrutiny.

This is a really good example, because what we have seen here is that the government is proceeding—I would put it this way—under cover of a portfolio bill, a bill described as a Statutes Amendment (Attorney-General's Portfolio) Bill—to fill out a whole bunch of clauses with these changes to the name that we are going to call these important judicial officers who serve those interlocutory purposes in the Supreme Court and the District Court on the one hand. In two of its clauses, it is then undertaking what is—and I would give the government this much credit—self-evidently, and I think understood by the government to be, a matter of particular controversy and of particular difficulty, which might rise as high as even evidencing an approach to our whole system of government and is yet placed somewhat anonymously and innocuously, on the face of it, in the midst of a portfolio bill.

Let's be clear about it: there are two subject matters, one of which is entirely routine—it could have been done in a whole variety of ways with a minimum of fuss—and the second is something that really goes to the heart of the government's approach to the profession, and greater than that. We might hear a whole lot of voices on the government side—and of course the debate on this bill decrying this proposition—appearing to provide a kind of indication of the government's attitude towards the system and foundation of the structure of government in this state, going, as it does, to the way in which senior members of the profession are identified and recognised. I will come back to that bit in a moment.

Certainly the court has a role to play, and certainly the profession and those individuals who either carry the title or appreciate what it means, and so on, have a proper role in terms of expressing a view, and they have certainly done so.

Indeed, I was someone who participated in the debate in the last parliament, where the parliament—and I might say with the support of the then opposition, now government—reinstated the appointment of what was at that stage, prior to the passing of Her Majesty, QC which has converted to KC. I might reiterate that I participated in this debate with an interest as a former active member of the profession and, indeed, member of the bar. It is an office to which I would aspire also, and I have some sense of what it means to fulfil the necessary criteria for the appointment, and so on, against the background of my own experience in the profession. Perhaps there is more to say, in a moment, about where we got to, the result of the previous legislation and what we now are coming at in terms of this legislation.

But let's be under no kind of illusion: this is a particularly curious way in which the government is going about legislating what those in the profession, those in the community more broadly and those who are engaged in public life will regard, for their own different reasons, as matters of particular substance when one is coming to consider the reasons why the changes that are the subject of clauses 31 and 32 might be brought here by this government at this time.

The fact that that is couched in a bill that is described as the Statutes Amendment (Attorney-General's Portfolio) Bill is, I have to say, passing strange at best. At the very least, I would expect that the Deputy Premier does not come into this place and say that this is subject matter that is just amenable to routine portfolio updating and, if nobody is looking very carefully right at that moment, you would blink and you would miss that caught up in the bill is this change. At the very least, I think the people of South Australia expect to hear: what is the rationale for the change and does it elicit a particular view of the government about the way in which we all ought to proceed? If so, let's have that debate in the broad.

As just one example of where this has elicited reflection on where we fit, what our structure of government is and so on, there have been examples of Senior Counsel—formerly Queen's Counsel who become King's Counsel in the circumstances I have described—who have all the more particularly reflected on the meaning of those titles in the context of this bill being brought to the parliament and might make a considered decision about the postnominals they choose as a means of expressing that substantive belief in what it means in terms of their view about the system of government.

Put bluntly, you might say: if you do not want the indicia of the Crown associated with your institutions, then let's have that debate and let's see all the consequences that flow from it. I have seen that go around before—there is no secret—but think about the bigger picture. Think about the whole context in which you want to prosecute that debate as a matter of substance. Do not just throw out these fig leaves under cover of a Statutes Amendment (Attorney-General's Portfolio) Bill, somewhere a couple of clauses into this kind of relatively innocuous set of 50-odd clauses, and then say, 'We sort of threw that fig leaf out in the midst of all that. Make of it what you will. On you go.'

That is to say nothing, then, of the fact that while earlier in the day we addressed Order of the Day No. 1, a matter that had been, admittedly, on the Notice Paper and the subject of debate now in this place for some little while, what the government has decided to do immediately upon the completion of that debate is not to proceed to Order of the Day No. 2 or 3 or even 4—I see Order of the Day No. 4, a matter, I understand, of particular substantial interest of the government to deal with as a matter of priority, or at least it has been—or even the next few on the list in terms of the Notice Paper.

We are here now commencing a debate on this bill that is called Statutes Amendment (Attorney-General's Portfolio) (No 5) Bill, and we are dealing with that as, it would appear, some sort of matter of urgent priority despite the fact that it appears at No. 23 of 23 on the Notice Paper. It is the last on the list; it is the last one at the end of a long list.

One might make observations about just how productive or otherwise the government has been in disposing of its agenda in this Fifty-Fifth Parliament, but just as we stand here right now there is a reasonable question, firstly, as to how this is couched in terms of an Attorney-General's portfolio bill, yet we find ourselves caught up in debate about the very existential nature of the state, but also that it is No. 23 right up to No. 2. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 12:59 to 14:00.