Statutes Amendment (Attorney-General's Portfolio) Bill

Committee Stage

In committee.

(Continued from 5 June 2024.)

Clause 1.

Mr TEAGUE: The first question is: why are we here? I think it has crossed the mind of many of us here in the house. It has also, I daresay, crossed the mind of many South Australians, and it has certainly crossed the mind of the profession that has been really so unnecessarily and egregiously drawn into this unnecessarily politicised process. There was a clue in the motion that has been moved by the minister just now, and that the house has passed, so as to prioritise the debate in relation to this bill appearing at No. 3 on the Orders of the Day over the debate on the budget measures bill.

But, more particularly, I note that there is even more to be drawn, because the motion that the house has just passed moved Order of the Day No. 2 to be dealt with after Order of the Day No. 4 which, of course, is the Late Payment of Government Debts (Interest) (Review) Amendment Bill, and that is something that is clearly on the government's agenda. We know all about that; that is the government endeavouring to hasten the time by which the government pays its debts, and that is what I would call a substantive piece of legislation that comes against—

The CHAIR: Member for Heysen, I do not wish to interrupt, but I just draw to your attention that you are reflecting on a decision made by the house—

Mr TEAGUE: Yes.

The CHAIR: —and that, as you know—because you have been in the chair before—is inappropriate. So can you please get to the matter before us, which is this bill and a short title.

Mr TEAGUE: And I do so immediately because we are in this situation, not surprised by a motion that has just been passed, and I do not reflect on it for a moment, but as against a weekly program as provided by the government as recently as yesterday that, in fact, advised the house—of course, this is general guidance issued subject to change—it was issued for the purposes of today and yesterday and advised members that in fact the Late Payment of Government Debts (Interest) (Review) Amendment Bill was a matter of priority for the government over and above this bill.

The CHAIR: Member for Heysen, I have been trying to politely indicate to you where we should get back onto the bill. If you don't I'll ask that the committee report and I'll take the chair and deal with the matter as a house. I am making it very clear now, okay? I was trying to make a subtle hint and you chose not to take that. Can you please get back to the subject matter.

Mr TEAGUE: On the point of order, Chair, I have departed from any reflection—and I certainly accept your ruling in relation to a reflection on the motion that was just passed by the house. What I have moved right along to, and I was really only traversing that ground with a view to making that observation in relation to what the house has been provided as advice by the government as recently as yesterday. It goes to the question of why are we here. Why are we here this evening debating this bill at this time in the circumstances of a weekly program circulated by the government as recently as yesterday that said something completely different.

In the circumstances of the debate we are told at the outset, and we are at the short title—we are told that the short title of this bill is appropriate in circumstances where this is a bill that addresses what has been described by the Attorney, as recently as 7 May and on the radio I think, and I've heard it from the minister in this house as well, as a bill that is suitable to be described as a portfolio bill, Statutes Amendment Portfolio Bill. It deals with what's been described by the government, and by the Attorney no less, as routine matters that are of a—I won't quote the minister or the Attorney, or let alone put it at the feet of the government that it has been characterised as wholly uncontroversial, but certainly the bill has been styled the way it has against the background of being described both in this place and in the public debate, by the minister and by the Attorney, as one of a general portfolio nature.

The Hon. S.E. CLOSE: I have a point of order, sir.

The CHAIR: Point of order. Member for Heysen take your seat, please. Minister.

The Hon. S.E. CLOSE: I am uncertain about the standing orders here so I seek your guidance, Chair, but all I have heard thus far was extensively traversed in the member's second reading speech and I'm wondering if that calls for repetition.

The CHAIR: Repetition is a thing which you are not supposed to do and it has been brought to my attention. So I would ask the member—

The Hon. S.E. CLOSE: I am more than happy to answer the question that has already been posed at the very beginning and probably doesn't need the extensive elaboration that is effectively traversing previous statements.

The CHAIR: I will deal with the substantive repetition. I would ask the member to have his say on the short title and we proceed, and I just remind you, if I have to, I will report to the house.

Mr TEAGUE: Thanks, Chair, and I just remind the committee that there is an opportunity to address the question, if there is one, but to address the committee for—I think it's a period of 15 minutes. I will just see if I can turn up the relevant standing order, but in relation to each clause for I think three occasions. I bear that in mind and I can certainly indicate that I have flagged the nature of the question at the outset. will certainly endeavour not to repeat myself. Some time has passed in the course of this debate—and perhaps by drawing reference to the Attorney's recent remarks in the media, which are brand new; I have certainly not referred to them previously.

The Attorney, on ABC Radio Adelaide, I understand, on 7 May of this year in response to the question from the journalist, 'What do you have against the KC title?'—and this is what is of most interest, I think, to the committee—responded:

Absolutely nothing at all, James, and I've got to say this isn't one of the major issues we're focusing on, we've had a lot of laws to reform to make it easier for investigators to prosecute domestic violence offenders, indefinite detention of child sex offenders, but occasionally we do have legislation that is routine, words that we use or modernising language, and there is a bill before Parliament to remove the term about 'Masters of Supreme District Courts'—

I quote there; I think he means Masters of the Supreme and District Courts, and it may have been wrongly transcribed—

to modernise it to call Associate Judges, and also reform to bring us into line with how we've been I think for most of this century and certainly the vast majority of other states to refer to senior barristers as Senior Counsel rather than King's Counsel.

I hasten to acknowledge 49 of the 51 clauses of the bill relate to the former of those two topics. Further, just in terms of what is anticipated—and I refer to the question of controversy or not; I do not know if I was quoting at the time—the Attorney indicated to the journalist later in the interview, in terms of where this bill had got to:

I think it's about a month that it's been out for consultation, and I've had submissions I think from the Bar Association and the Law Society and also from the judges and Supreme Court and I reckon in the last month…I've been directly contacted I think by four barristers and the count is even—two in favour, two against.

A few moments later, the Attorney further observed:

…this is a pretty minor issue and certainly we don't plan to dedicate much Parliamentary time at all, as we often don't, towards our routine matters and modernising language.

There is a caller immediately after that—whose sentiments I might indicate to the committee and I am tempted to share at this point—who was quick off the mark, observing, 'This Labor government is losing all credibility,' and then he went on.

In asking why we are here, I declare as I did at the outset in my second reading contribution that I am really dismayed about where we have come to with this legislation, because it might readily be said that 49 out of the 51 clauses might meet the description. Two of them do not, and as for the Attorney's observation that as of early May, a bit over a month ago, he thought he might have been approached by a handful of members of the profession and it was a bit even and no-one was all that interested, the public record speaks loud and clear to the contrary.

As I did in my second reading speech, I am quick to declare an interest in every sense. I am not presently a member of the senior bar, but I aspire to that role, I honour that office and I honour those who have been drawn into what might be described as a debate, a controversy, a sustained period of what could be described as politicisation, of difficulty, of controversy and one in which particularly the most senior members of the bar in our state have found themselves in circumstances where they ought to be recognised as the most uncontroversial of leading contributors to our justice system. We have seen this most unfortunate display of difference. It is a great shame.

I was even accused by the minister in this place—not this minister—of impugning the bona fides of the Chief Justice. I was quick to hop on my feet and demand a withdrawal and the minister withdrew. The last thing I would do is to impugn the bona fides of any of those senior officers of the profession and in the courts and most of all the Chief Justice. But there we are.

We are here in circumstances where it has become a matter in which a minister is addressing erroneously and he has withdrawn it, this question of whether or not the bona fides of the Chief Justice are being impugned. We see media reporting now running for many weeks, dragging the justice system, dragging those who make a leading contribution at the senior bar through this controversy and this difficulty and for what?

This against the background of a very thorough-going engagement of the profession, that is the Law Society of South Australia and the Bar Association and the court, a matter of a few short years ago in circumstances where a choice was reinstated, I hasten to add, entirely independently—remaining entirely independent—of any politicised process. That was the purpose of the 2008 changes.

We have had it embraced by as good as a unanimous view of the Bar Association—98 per cent I think was the recorded data. The Bar Association virtually unanimously maintains that the position we had got to only a few short years ago was exactly right. It was free from politicisation, allowing senior members of the bar to choose as to the post nominal and what do we see now? The government has decided to drag the justice system into this unnecessary ignominy, to drag the justice system into something.

It is not even described as what it is. It is all under cover of a bill that the government has described as, 'Oh well, amenable to this kind of routine characterisation.' It is a great shame. It is not too late. But here we are, sitting on one of those rare occasions in this Fifty-Fifth Parliament after 5.31pm. Why? Because we need to pass the budget to keep the wheels rolling in the state of South Australia? No.

In fact, we have the estimates process due to start first thing tomorrow morning. Against the background of feedback that came to the Attorney-General directly to the contrary of what the Attorney anticipated when he went out and spoke to the media in early May, it could not be further from what he was anticipating. It is there on the record. It is not necessary for the committee to remind itself of the Attorney's expectation. And I get it. I do not want to look behind what the motivation is. It is there on the page. The government has chosen to characterise the bill in terms of being amenable to—

The CHAIR: Member for Heysen, you need to resume your seat if you've finished your first contribution.

Mr Teague interjecting:

The CHAIR: No it doesn't. It might in your world but not for me.

Mr TEAGUE: The question is why we are here.

The CHAIR: I think it's a meaning of life question.

The Hon. S.E. CLOSE: I have nothing to add to that given in the second reading speech explaining the purpose of this bill.

The CHAIR: I missed that.

The Hon. S.E. Close interjecting:

The CHAIR: No, it is okay. Member for Heysen, did you wish to make another contribution?

Mr TEAGUE: I missed it as well.

The CHAIR: In that case, you have to repeat it, sorry.

The Hon. S.E. CLOSE: I am perfectly happy to; I am just not sure why people do not listen to me. The question is: why are we here? I have nothing to add in answer other than that which I gave in my second reading speech explaining the purpose of the bill. I had the explanation of clauses inserted into Hansard.

Mr TEAGUE: That is a telling response. I think it is why we are here in the committee, serving what I hope may serve as a useful process of placing on the record numbers of matters that might contribute to posterity. The minister has indicated that there is nothing to add beyond what was indicated to the house in the course of the second reading speech. I might be corrected, but I think the bulk of that was inserted into Hansard by leave without reading it. We might all be corrected on that. It is not a great deal if anything turns on it.

The point is that the second reading speech was now some time ago. There might be other members of the committee who might be able to turn up precisely where it fitted by reference to the Attorney-General's contribution on ABC radio back in early May. If there is nothing to add since the second reading speech, it sort of begs the question: was the government's decision to press on in terms of the second reading flying in the face of what the Attorney's expectation on 7 May was? I think so.

The Attorney certainly could not be expected to maintain the characterisation that he gave of his expectation in relation to the nature of the issues the subject of the bill, having seen what has come since that time. There is a point in time that is illustrated by what we have heard from the Attorney on 7 May. At that point, there was an expectation that this was not a major issue, not really one of the major issues being focused on, that it was routine, that it was substantially about modernising language. There is a fair bit then to say about that.

Really, at the core, the indication to the people of South Australia at that time was, I would suggest, best characterised by ambivalence at best. We do not plan to dedicate much parliamentary time at all, as we often do not, towards our routine matters and modernising language. I am quick to make clear at this point as well that the characterisation of all this as being routine and modernising language and so on is to be contrasted with what was achieved just a few short years ago and, in turn, what was done in 2008 insofar as those two impugned clauses are concerned.

The committee might bear in mind for the course of the committee process that it is very important to distinguish the circumstances in South Australia at all relevant times from those that the government has drawn in as comparators, New South Wales chief among them.

At least since 2008, and in response to the particular circumstances first of Elliott Johnston, I might say—and I will come back to that—and more laterally those of David Edwardson, the process of appointment of Senior Counsel was disconnected from any question of politicisation by former Chief Justice John Doyle in leading the change that occurred in 2008.

What we have then seen, restored against the background of a substantial engagement with the profession, only in recent years it was again about the restoration of a choice that facilitated the appointment, free of politicisation, completely in the control of the courts, as distinct from circumstances in New South Wales where the Bar Association has control of the appointment and does not want to relinquish it and you have a fixed situation as a result, even though anecdotally the vast bulk of the bar in New South Wales would change if there was an opportunity to do so.

So there is no substantive problem to solve or issue to address, but rather there is this out-of-the-blue, uncalled for change in name that has then brought upon the government this completely unwarranted storm of controversy, with the result that particularly the most senior members of the profession and the judiciary have been then drawn into controversy in a way that the government might not have anticipated, even at the time of the second reading speech.

The Hon. S.E. Close interjecting:

Mr TEAGUE: The minister has indicated that there is nothing to add to what was advised; it has not changed.

The Hon. S.E. Close interjecting:

Mr TEAGUE: The minister said that things have not changed.

The Hon. S.E. Close interjecting:

Mr TEAGUE: No, and the minister is indicating that the bill has not changed, the provisions have not changed. But what informs the debate? Even if there is an inadequacy of capacity of persuasion on this side of the house to bring to attention matters that ought in the most sincere sense be persuasive, what ought to move the government? What ought to move those who have responsibility for the whole of government and the interests of people in South Australia, beyond just the individual portfolios of ministers who might be overly preoccupied with a particular agenda or whatever it might be, to have clear eyes and to say, 'Hang on, over the passage of time as a minister, in this case the Attorney, goes out to the media and tells a story about expectation.'

We have seen the Chief Justice has been in engagement with the media and then in turn we have heard from senior members of the bar also. There has been a public debate, there has been what I would describe as a furore, and that has all occurred over the passage of time whether any of us like that or not. I might have stood up at the beginning and said, 'Hang on, this is what is coming. I am not the author of it. It is avoidable and a reasonable course, a thoughtful course of action, in all of the circumstances.' This was against the background of the expectation of the government to say, 'We were not buying into anything controversial here. This is just a modernising. We do not want to spend any time on it. It is just a routine matter.' Once on notice that, no, this is really substantive stuff and this is really important and something that goes to the core of the justice system in a way that may not have been anticipated by the government, then surely the government is keeping its eyes and ears open, even throughout the course of the debate. So for the minister to hop up in response to my first question: why are we here, sitting on a rare occasion, after a dinner a break, into the late hours—

The Hon. S.E. Close interjecting:

Mr TEAGUE: If the only reason the government is doing this is to somehow exhaust the debating process, if that is the case, then it smacks of the government having closed its eyes and ears. Do I call on the Premier to do what the Premier has been wont to do from time to time through the course of this Fifty-Fifth Parliament, or the Deputy Premier indeed, to say, 'Hey, have a fresh look at this.' Come on over and say, 'Hey, come on, where are we?' But the Deputy Premier no less has said in response to my first question, 'Well, there's nothing to add in terms of what is informing this debate.' Certainly the bill has not changed, the words of the bill have not changed, the law has not changed—it is just as it was—and the second reading debate is there on the record; that has not changed, that is there as it was. What has continued to develop and grow is a furore in the public space.

If it is to be regarded by the government as just of no consequence whatsoever, it could not possibly be in the least bit persuasive and the way forward is therefore to at no notice make a change-around of priorities and then sit specifically at this time in order to progress the debate in this bill, then there is this extraordinary juxtaposition, I will put to the committee, because it is certainly nothing like what the Attorney-General was anticipating there on the public record on 7 May.

My interest in this debate and for these purposes is squarely one of endeavouring to persuade the government of a better course. It is a free country and there are a whole variety of different advocates who have had things to say and there is a whole bunch of, as I understand to be, expression of opinion expressed in all sorts of ways, including to government, including in ways that I am not privy to, and it is best that I am not.

But I do not hear the Deputy Premier say, 'Actually, you've got this completely wrong. It is exactly what the Attorney described it as. All that you see in the media, we know better in the government because we have actually got an inside word. We've got reassurance. The Premier has been reassured. It's okay, the senior bar is all content, the judiciary is all content, everybody is happy about this. This is going to enhance the justice system in the state of South Australia. The poor old member for Heysen, he's endeavouring to make this point but he is barking up the completely wrong tree because the way the Attorney described it to the people of South Australia on ABC radio back on 7 May is precisely where we are, where we remain and where we have been.'

If that is the case then the minister might assure the committee, but if it is just a matter of the government just kind of bludgeoning its way through, ignoring the public debate and saying, 'Well, we are going to characterise this as just a routine 'nothing to see here' modernisation language, nothing to do with ideology, nothing to do with any broader agenda; it's just something that we don't put much time into and we will do it as a matter of routine,' that's a very different response.

So I will perhaps just ask the Deputy Premier: is it the case that in the course of the debate from the second reading until now, the government has been alive to the public debate, and particularly the voices that have been raised by members of the senior profession? Is the government giving consideration to representations that have been made, including by the senior profession? What, if any, effect has that had on the government's consideration of proceeding with the debate on this bill into the late hours of tonight?

The Hon. S.E. CLOSE: It is interesting to be accused of both undertaking a bill that is characterised by the member as a government attitude of this is unimportant, and then bewailing that we have decided to have an evening sitting to facilitate the debate of the bill. These two things do not sit together. I found it passing strange that the overwhelming theme of the speeches from the other side during the second reading was this was a waste of time, and yet I suspect that when people read through Hansard they will see who spent the most time repeating themselves in points that have been made previously.

The question appears to be whether the government in the last two weeks has been listening to feedback from the community, and I can assure you that the Attorney-General does so. But we are debating a piece of legislation. The question previously asked, that the member did not appreciate the answer for, was: 'Why are we here?' We are here to consider this bill. The rationale for that bill has been presented. If there are changes proposed to the bill, then let's have those amendments, and then let's allow people to continue to do their other jobs as well.

Mr TEAGUE: As has been the practice at clause 1, it is a convenient point to make that more general observation, and I will not reflect on analogous debates—debates in relation to other legislation—but this proposition is true: this bill has come to the parliament at the instigation of the government as I understand it. That might be a trite observation ordinarily, and I said I was not going to refer to other legislation, but let me be clear so that it is there on the record.

We had a bill that affected the business of the Supreme Court called the distribution of business bill before the house not so very long ago. That was, by contrast, described, characterised as being before the parliament at the request of the Chief Justice. That is why it was here. It was not part of the government's agenda. The Attorney responded to a request by the Chief Justice in that case. That is uncontroversial. That was certainly the way that the government characterised the bill in that case.

This bill, by contrast, and I have mentioned the Chief Justice, and so in terms of this bill, it is very clear that this bill is brought to the house at the instigation of the government and, when asked, the Chief Justice, including publicly, has indicated that he is in favour of relevant provisions. I do not recall the Chief Justice engaging—he may have—in relation to the bulk of the clauses to which the bill relates in terms of changing the names of Masters to Associate Judges and Associate Justices respectively. The minister might just indicate to me if it has been the case, but I am putting a proposition that I understand to be true, which is that the entirety of the bill is here at the instigation of the government.

If the Chief Justice had something to say about matters other than the subject of clause 31 and clause 32 then that does not specifically come to mind, but it might be interesting for the record just to make that observation as well in the particular context. That is just to frame why we are here with this particular bill. As the short title indicates, it is described as being matters within the Attorney-General's portfolio and on we go.

The Malinauskas Labor government has made much, as one might expect, of making a virtue of meeting each and every one of the many election commitments that were made by the government in the lead-up to the last election and coming into government and so on. There has been a whole range of policy documents also that have been published by the Labor Party and have been the subject of undertakings from the now Malinauskas Labor government in relation to the meeting of election commitments, the actions consistent with stated policy, and so on.

I guess, perhaps to put it this way, if one was to take on board the contribution of the Attorney in the course of the debate and in terms of public pronouncements before and—

Members interjecting:

The CHAIR: Members to my right, I am trying to listen to the member for Heysen.

Mr TEAGUE: Thank you, Chair. The day-to-day opprobrium of the role is something one struggles through and I guess I am just sort of used to at this point, so I appreciate your protection. I do not expect that there is attention paid to every observation, and I have even admonished myself for my apparent lack of capacity to persuade in the course of trying to speak sense about why exactly—

The Hon. J.K. Szakacs: That is the first sensible thing you have said in the last 14 hours of debate.

The CHAIR: The Minister for Trade is not in his seat and therefore should not be speaking out of turn.

The Hon. S.E. Close: He should not be interjecting at all then, strictly speaking.

The CHAIR: No.

Mr TEAGUE: There might be other members of the committee who are actually interested in taking on board some of the substance of the debate. Indeed, for those who are following the committee progress by all of the various means—including the traditional one and in terms of the public record going forward—there is that work to be served.

The characterisation here to be made is: you have an Attorney-General who—and, again, I do not have the second reading contribution in front of me, but let's proceed on the footing—characterised the nature of the bill and the debate and the level of priority more or less in terms that he was sort of ably summing up to the journalist on the ABC radio (the one that I have cited) in terms of it not really raising much in terms of it being either a priority or expecting it would take much government time or that the subject matter had any real substance of import at all.

Far be it from being characterised as a great statement of ideology or an expression of principle—no, all that has been eschewed as, 'No, that's not us. There's nothing to see here about that, this is just routine modernising.' I am conscious of your admonishment, Chair. I am not endeavouring to be repetitive in this regard.

What I have drawn attention to is that we have in this Fifty-Fifth Parliament now, in this rapidly ageing Malinauskas Labor government, a commitment at least to fulfilling election commitments, to stating policy and then delivering it, and saying to the people of South Australia, 'Right, there you go, you can expect that Malinauskas Labor will do what it committed to do,' and then you see this being trailed in. My question is: do we see this—and, if so, where?—anywhere in Labor's election commitments, and anywhere in terms of Labor policy?

One might expect that at the very least, in the circumstances of the way this bill has been framed, we might have an edifying debate about the sort of ideological matters that might be associated with it, but the government has walked away from that completely. It has said nothing to do with any of that—'This is just this sort of routine modernising, not much time to spend, nothing to see here and, by the way, 49 out of the 51 clauses are addressing a name change.' Who knows how that arose, but it has come at the instigation of the government.

There is not the request of the court, unlike the bill that I drew in comparison, where the government was right up the front and said, 'This comes at the request of the Chief Justice.' 'Okay, right, then let's have a debate about where that fits.' No, this is at the instigation of the government, and yet, as far as I can tell, there is no statement of policy, there is no election commitment to do any of this. I am reasonably well informed I would like think, and I am not aware of the Masters having clamoured for this at any point, and therefore of course you would see it in the election commitment document: 'We are going to change the name of the Masters, that's what we are going to do.'

In those various different illustrative ways, there is no evidence that this has come from anywhere except out of the blue, and yet we see it apparently being brought here at the instigation of the government. So the question is: which policy document; and where is the election commitment to be found? If not, why not, and why are we here?

The Hon. S.E. CLOSE: This was not an election commitment, as the member well knows, having presumably read our policy at some point during the election campaign; however, the idea that a government can only do what they have promised would severely hamper any government from operating. Naturally, one must do all that one has promised. To say that that would be all that one would ever do—for example, it would have been very difficult to respond to COVID if you had not happened to have a pandemic plan in your election commitments. The idea that this has come out of the blue would not be consistent with the understanding that when Labor was previously in government this was a position that was taken, so it therefore should be of no surprise.

I do not want to prolong this debate unnecessarily, but I would say that if the member is serious about persuading this house to vote differently, as opposed to simply repeating exactly the same arguments that I now feel has been exactly six hours' worth that I have heard, with nothing new being put, then there would be amendments tabled, but there are no amendments. We are not here to change the bill. The member does not like the bill and will presumably vote against at least two of the clauses. He has chosen not to genuinely seek to persuade the house to vote differently, but instead has chosen to spend parliamentary time repeating himself. Please continue.

Mr TEAGUE: Point of order.

The CHAIR: A point of order.

Mr TEAGUE: It is unfortunate to reflect on whether a contribution of a member is genuine or not. I think it is well known that it is contrary to standing orders to impugn the motives of a member, and I ask the minister to withdraw or recharacterise that.

The Hon. S.E. CLOSE: I would be very happy to withdraw the suggestion that not bringing amendments means that you are not serious about changing the bill.

Mr TEAGUE: That was not the subject of the point of order. I have been accused of not genuinely interrogating the bill, and I take exception.

The Hon. S.E. CLOSE: I absolutely withdraw any such suggestion—of course you are interrogating the bill. We are spending hours and hours interrogating the bill. I was simply saying that, if there was a genuine attempt to change the bill—in a hypothetical sense that any member who wished to actually change the bill might actually bring amendments forward.

Mr TEAGUE: If I can quickly respond to that—

The CHAIR: No, you do not get the chance to respond. Resume your seat, member for Heysen.

Clause passed.

Clause 2.

Mr TEAGUE: Clause 2 then?

The CHAIR: Yes. Clause 2 deals with the commencement. Your comments had better deal with the commencement.

Mr TEAGUE: Thank you, Chair. I am conscious of the standing orders. The point that I would have taken the opportunity to be clear about—

The CHAIR: No. I have made my ruling: deal with clause 2.

Mr TEAGUE: In dealing with clause 2, just like each of the other 48 that comprise the 49 clauses that are not the subject of controversy, I have been clear right from the outset that there is no proposal to amend any of the balance of the bill and, in fact, the nature of the debate is in keeping with a bill that is as straightforward in many ways as it is. It is a bit grandiose to describe it as covering a whole lot of ground; 49 clauses out of the 51 are just going through the process of achieving those name changes. I do not want to belittle it too much, but that is what the 49 clauses are doing. There is no opposition to that from the opposition.

Amendments are not filed in relation to controversial provisions because the opposition has made it very clear that they ought not be there, and that has been perhaps said in a number of ways. But I might say, as the relevant context of the debate has permitted, while there has been occasion to make some observations focusing on those relatively minor—in terms of the volume of the bill, there are only two clauses out of the 51 that are controversial. That small number belies a greater significance.

It is certainly within the government's power not to press on with those clauses, and I am not standing in the way of the debate in relation to everything else in order to make that point. But the minister has addressed the question of an approach to the debate and the capacity to make amendments and so on. First of all, the nature of support is more or less comprehensive and, secondly, the nature of amendments is pretty straightforward, so much so that the amendments are a question of deletion. There is no surprise about any of that.

In the absence of there being any policy document or election commitment in relation to the bill, it ought not be surprising, then, to the government that there might be some interest in the committee stage of the process informing members about just what exactly the bill is doing, where it comes from and what the government anticipates will be achieved by it. Of course, we could all just say, 'Okay, it's routine, there's nothing to see here. We can all avoid the trouble, so we'll just sort of cut a swathe through all of that,' notwithstanding it has come up out of the blue and that it has caused such enormous angst as to one discrete aspect of it. That is not the case, and we are here responsibly dealing with what are, in large measure, provisions that are unrelated to the matters of controversy.

As we consider the question of the commencement provision the subject of clause 2, we see that the act is to come into operation on the day of assent but subject to carve outs that provide for the bulk of the bill to come into operation on a day to be fixed by proclamation. That rather begs the question. It is a somewhat unusual structure that has been adopted. And so for the benefit of those who are following the debate, I will perhaps just unpack the way in which the commencement provision is said to operate.

We have two subclauses. The first provides that, subject to anything else that is said in the provisions, then it comes into operation on the day of assent. Then we have parts 2 to 5 that are said to come into operation on a day to be fixed by proclamation. Parts 2 to 5, and I will be corrected, but I am going to characterise them as being those parts that respectively make amendments for the name change from Master to Associate Judge, or Associate Justices might be applicable, respectively for the purposes of the Courts Administration Act 1993, the District Court Act 1991, the Environment, Resources and Development Court Act 1993 and the Judicial Administration (Auxiliary Appointments and Powers) Act 1988. That is one group. They are all provisions that are amending those acts so far as the naming of the judicial officers is concerned.

Then the second carve out that is said to come into operation on a day to be fixed by proclamation, sections 28 to 30 inclusive. Those are the first three—at present, they are the first three clauses of part 6, which are amendments to the Legal Practitioners Act. Those, as I understand it, are also relating to amendments to the name of the relevant judicial officers. We bear in mind the impugned clauses 31 and 32 that are then not included in this carve out.

The carve out then moves to what is presently clause 33, which deals with cost disclosure and adjudication. Then, moving right along to part 7 and part 8, which are respectively the changes to the Magistrates Court Act 1983 and the Supreme Court Act 1935, both of which are those parts dealing with the changes to the names for the purposes of those acts.

As I read it, it might have been perhaps more simply put in the positive. The minister might just indicate to the committee why just those two clauses were excluded from the operation of clause 2(2). Perhaps to save the committee time or to cover off, why the structure adopted in clause 2 in terms of the commencement?

The Hon. S.E. CLOSE: I am advised that subclause (1) is the standard, that a bill would ordinarily come into operation on the day on which it is assented to unless there are particular reasons for needing to take more time on particular provisions, and that the provisions that are listed are those expected to be likely to require an alteration to court rules to reflect the new titles.

Mr TEAGUE: I appreciate the minister's response. Is there anything other than the provision of that time to amend court rules that would drive the timing of the assent? At first reading, you would look for the exception to be subclause (2), but in fact it is the bulk of the bill that is the subject of coming into operation on the day to be fixed by proclamation. So the name changes will be coming in on a day to be fixed by proclamation.

If we call it broadly in terms of two categories of change that are being effected here, albeit one taking up the bulk of the contents of the bill, my first thought is that there might be rule changes required, or at least parallel amendments to the naming arrangements in the rules, that would effect both categories. Is there some sort of further elucidation on that that the minister might provide to the committee?

In doing so, if there is some special reason why it is only one category that is effected by rules changes and not the other, then for practical purposes is there some indication as to time that the government is advised—has there been some interaction with the courts, some expectation, preparation and so on? I am conscious that the debate has been going for a little while now.

The Hon. S.E. CLOSE: I think there are a couple of elements to the question. One is why would it not be perhaps that the King's Counsel/Senior Counsel change similarly require some adjustments. The advice I am given is that, because people who already have the title are free to maintain it and it is just about from this point on, there are no systems changes required.

As I previously explained for the second element of why those other provisions do require the capacity to take longer, we have explained already about the court rules. I do not want to be exhaustive in what might be required, but our expectation is that it is likely that there may be some systems changes required also. There will be consultation undertaken immediately about this to set a date, and the date will be fixed so that the courts are able to work towards that, allowing them the time that is required to adjust.

The ACTING CHAIR (Mr Brown): Further contributions on this clause? Member for Heysen.

Mr TEAGUE: I think that is right, thank you, Acting Chair. You have certainly hit the ground running, and I appreciate your guidance; a third question is my understanding as well. To put aside controversy to the extent that we possibly can, is it the case that—it would be legislated, I suppose—in terms of the rule changes that would be necessary in terms of the bulk of the clauses, the ones the subject of subclause (2), is there any particular feedback or view that the minister might indicate to the committee about what might apply presently to the Masters of the District Court as distinct from the Masters of the Supreme Court?

Is it anticipated that all of those matters will be able to necessarily be achieved at once? Of course, we have got a universal set of civil rules; we are a multi-jurisdictional court, of course, and there are important differences between the work that the Masters are doing in each of those two courts. Is it anticipated that that will be done inevitably at once? Is there the possibility that one process might be dependent upon any aspect of rules that are distinct from one court to the other?

The Hon. S.E. CLOSE: So as I understand it, the question is whether some courts might be able to do this more quickly than others. We will determine that through the consultation process and work on a date that most facilitates that occurring smoothly. This is something that, although it has been requested, can be managed over a period of time, that means that it is not disruptive to the courts.

Clause passed

Clause 3

Mr TEAGUE: Clause 3, and I am conscious that there has been a fairly substantial preoccupation with the sort of small volume of the bill, perhaps to the detriment of the bulk of the clauses, which affect the role and the naming and, perhaps by extension, the status even, to that degree, of those particular judicial officers. So we see in clause 3 the first of the references to amendments to definitions of 'judicial office' for the purposes of the Courts Administration Act 1993. So for relevant context, I suppose, it may be of assistance to the committee for me to say that, while the office of Masters, as I understand it, has a history going back to 1066 and a mixed reputation over the course of the centuries, the role within the court system is one of particularly longstanding and amendments therefore to the name, let alone the institution, are matters of note in the evolution of the organisation of the business of the court.

I might just say there is a bit more to perhaps reflect on shortly. The reflections that have occurred in the course of the debate, including by me, in relation to a comparison by a court that adopts a docket system, the federal court being a prime example, a process that has been adopted in the South Australian registry from the outset and that we have seen a debate, culminating around 1997, in relation to a federal court practice that adopts a docket judge approach, that therefore you don't have a system of Masters, in terms of shepherding that interlocutory process.

The ongoing importance of the role of the Masters in our state's District and Supreme courts is informed at least by the fact that those are courts of multijurisdiction. We have criminal and civil matters running parallel and we have judges who are expected to be available to hear trials in both the criminal and the civil jurisdictions.

As a practitioner, I have been very fond of the efficacy of the docket system in the Federal Court where the judicial officer who is going to hear the trial ultimately is seized of the matter from the outset, so in a way the rot cannot set in in the process if it is running contrary to what the judge who is ultimately going to hear the matter at trial is really wanting to direct from the outset.

Matters like the evolution of discovery processes, the approach to what might otherwise have been endless preferences of parties to follow every interlocutory process down every rabbit burrow can be identified and addressed by a docket judge in that system from the outset, and that docket judge has eyes on the trial knowing that, 'Right, the end of the process is where we are headed.'

Two things are to be made clear. The first is that the District Court and the Supreme Court have that mixed jurisdiction, so you have Masters having that important role of making sure that the interlocutory side is managed, and judges are free to accept what might be a criminal trial one day and a civil trial another. The judges are not being seized of all interlocutory stages of every matter, so it is in contrast to the docket system.

The second thing that might be observed about the importance of the Masters—and this something that has been raised at various junctures ever since 1986. This is 16 years after the District Court was established. Even since 1986, there has been a distinct shift in the work of the Masters in both of those jurisdictions—District Court and Supreme Court. Both departed from what we had at the outset of the tradition, which was a very administrative function, to one that is actually making binding judicial decisions routinely. That is underscored by the fact that, at least in recent decades, there are very few civil cases that now ultimately make it to trial.

In fact, it is possible to go as far as to say that for a bulk of matters that are before the courts, it is a sign of failure by all concerned if a civil matter is making it to trial and needing to be subject of a trial, with all the attrition and so on and costs and all the rest of it that is attended by that. So the Masters are doing critical work, critically necessary, and often the only judicial work in relation to large swathes of the business of both of those courts. That has been something that has evolved over time: both the expectation on those roles—and I say that since the mid-eighties—and then the nature of civil litigation and the fact that so very few matters now make it to trial.

That has found its way, therefore, into a kind of abiding appreciation by those involved in the justice system that the Masters do this vital work and that they are in turn saving the system from having to have judges occupied in circumstances where the bulk of matters are not going to trial, and yet throughout that history, including that modern history in South Australia of the Masters, it has been the case that the Masters not by dint of the title I might say necessarily, because the stroke of a pen in terms of proclamation could alter their status—the status of the Masters vis-a-vis the judges of the court, as section 10(1) of the District Court Act provides, for example, is that the judiciary consists of the Chief Judge, the other judges and the Masters. So that much is clear.

But Masters have otherwise been sort of subject to being in a sort of halfway house for practical purposes, which is in my view a matter of substantive concern. How to deal with that halfway house problem is a matter of substantive concern and it is not the subject of this bill and it is not easily the subject of an amendment, to go back to the minister's admonishment, but it is a matter of substance. If there was a matter of wrestling with where the Masters are really at and what they might need and how we might reform for improvement, then there is a matter that might find its voice in a portfolio bill of substance.

Again, the title is well known, it has a long history, there is no particular problem with it. My understanding is that it is sort of an interesting creation to think about an alternative title when nothing much turns on it—and I think I have said that in a number of ways—but you have these substantive halfway house issues that Masters are affected by, including a different financial treatment compared to judges, yet they are prevented from practice post retirement in a way that judges are. They are kind of caught in a position of disadvantage, if I might put it that way. Those anomalies or differences can be rectified, and I think there are seriously good arguments for going about that and considering it, including by reference to consideration of any relevant proclamation pursuant to section 4 of the Judges' Pension Act 1971.

So those are matters of substance that, if the government is serious about modernising the role—and we are here at clause 3 talking about the definition of 'judicial office'—then there is a matter of substance. There are a couple of matters of substance. Even at this late stage, why do we not help out. The government might say, 'Well, we can't think of too many reasons why we are here at this late hour right now but, guess what? We have been inspired in the course of the committee and we are going to do something substantive. We are going to not only give them this fresh new name, but we are going to do justice to, excuse the pun, these halfway house issues that affect ultimately the full-blown judicial independence of these officers'. You do not have to change the name in order to make the substantive change, and I will get to it perhaps a bit later on.

The Masters, as I say, since 1066 have gone through times in which the development of the tradition of the office has waxed and waned, but we all know about the Master of the Rolls, for example, and I do not see anybody looking to walk away from the famous legacy of holders of that office in the course of judicial history.

There is, on the one hand, plenty of prestige associated with the title and, if there is going to be a change that is associated with modernising—as it is perceived—from Master to Associate Justice or to Associate Judge, then I reckon I would speak for those Masters. I hasten to add that I do not purport to because they have not, as is not the case, made any direct representation to me in this regard, but one can see it in the course of practice, and one is aware of where the Masters sit in terms of the situation.

Those anomalies are apparent. I think they are apparent to all of the profession. They certainly, I am sure, are apparent to the Masters and, if I might emphasise, that is particularly so in respect of the Masters of the District Court because, unlike the Masters of the Supreme Court who have status as Judges of the District Court—and I will be corrected to the extent any of this is sort of a gloss by way of summary, or as otherwise incorrect—the anomaly issue in terms of judicial status is not so acute in terms of those Masters of the Supreme Court because of that status as Judges of the District Court. But we see that writ large from time to time in terms of the circumstances of the Masters of the District Court in particular. And I understand it would not be unprecedented either. There have been proclamations at least—

The ACTING CHAIR (Mr Brown): The member's time has expired. Do you wish to make a further contribution, member for Heysen?

Mr TEAGUE: Perhaps if I might ask my question?

The ACTING CHAIR (Mr Brown): Yes.

Mr TEAGUE: Does the government have any plan, including in relation to a proclamation of the kind that I have described, to address any of the substantive concerns of the role of the Masters in the course of, or in parallel, with these name changes?

The Hon. S.E. CLOSE: Harking back to 1066, it is a long time ago, and I am starting to have a visceral sense of the passage of that length of time. The proposition before us does not address the matters that the member has spoken of extensively, nor is there any amendment to address those. Despite the obvious extensive knowledge of the member on the other side, it is not in this legislation. It could in the future be considered by either side. It could become an election commitment from the other side, should they choose, but it is not currently before us.

The ACTING CHAIR (Mr Brown): Are there any other contributions on this clause, member for Heysen?

Mr TEAGUE: That was number one, wasn't it?

The ACTING CHAIR (Mr Brown): Yes, it was.

Mr TEAGUE: I am glad to have an opportunity then to respond. I am at pains to just indicate that it is not within my power presently to make a proclamation of the kind that I have referred to. However, I understand that that can occur without legislation. While it might be that we have had this debate that has centred on what this bill does and does not do, I take the point. It has even been characterised by the government as kind of a 'do almost nothing' bill. I do not mean to be pejorative in that sense. It would make sense, I am just submitting.

The reason I raise it in this context is that there is nothing to prevent the government, in concert with this change, to say, 'Oh, and we're serious in a substantive way and we recognise the anomalies that apply and that's why we're committed to this Associate Judge term now and that's why we are committed to Associate Justice, and'—it puts it a bit crudely in these circumstances, but—'we're going to put our money where our mouth is and say we have thought this through.'

As I say, this bill has not come to the parliament at the request of the Chief Justice or at the request of anybody else in the courts; it has come at the instigation of the government. Had it come at the request of, or with the imprimatur or the guidance of the courts, that might be different. I just speculate. One might have thought if it was something that came as part of a kind of representation originating from the court—as one might in terms of the resourcing of judicial officers or the nature of support in terms of associates, which is something that we have certainly provided for and there has been a process of advocacy in relation to that discrete matter—it would surprise me if we were here debating a name change without these issues coming up more less immediately.

There are all sorts of reasons why something might just kind of arise discretely. We have heard on various occasions along the way, even in this Fifty-Fifth Parliament, 'This is part 1. This is the easy part of what is a more complex and serious piece of work to follow, but what we're doing now is just the easy bit, the uncontroversial bit.' It has not been characterised that way, quite, but it has certainly been described as—

The Hon. S.E. CLOSE: Point of order, sir: a couple of times now the member has said, 'This isn't quite how they said it, but…' I just want to be really clear when we are quoting the Attorney-General and when we are not quoting the Attorney-General, just to be fair.

The ACTING CHAIR (Mr Brown): Member for Heysen.

Mr TEAGUE: On the point of order, I was not quoting the Attorney-General there; I was characterising the attitude of the government to the bill. If I might be seen as to be adopting the characterisation of the Attorney-General as described to the ABC radio on 7 May, as I have said it before, the Attorney-General said, and I quote, 'This isn't one of the major issues we're focusing on.' Then he talked about some matters that, presumably, were, and then he went on to say, and I quote:

…occasionally we do have legislation that is routine, words that we use or modernising language, and there is a bill before Parliament to remove the term about 'Masters of Supreme District Courts' to modernise it to call Associate Judges, and also reform to bring us into line with how we've been I think for most of this century…

He then goes on to refer to Kings Counsel. We are not here concerned with that for the moment. That is the characterisation that I have quoted in relation to the Attorney-General more specifically.

I have couched the debate, the motivation, the beginning and end of the substance of the bill from the government's point of view more broadly, as being not even—I do not want to refer to other legislation in the current parliament, but we have seen where the government has said, 'Okay, we'll bring this sort of first round bit into the parliament. This bit is the easy bit, it's uncontroversial. We're doing some more work and that's going to be the subject of a subsequent bill, or we're going to do these other things in concert with what you see on the face of the bill.'

We have not seen anything of that nature and yet it would be surprising to me that, in the event that this change had been canvassed in a serious, substantive way with the court, not rising to the point of originating from the court as a request or a submission or something but that it was the subject of a thoroughgoing canvassing of the topic, that the anomalous position, if I might put it that way—perhaps not quite invidious—of particularly the District Court Masters would not have been raised such that government would have nothing to say about it.

I think the range of responses from the government in this regard might be from, 'Nothing in this bill, go away; nothing to see here,' through to, 'Yeah, I heard about the topic, appreciate that, goes hand in glove with the change,' and the change to the modernised title is actually charting a course towards these improvements that address anomalies all the way through to, 'Yeah, glad you asked, that's exactly what we are doing,' because that is exactly what you would expect. And you don't see it on the bill, because the bill does not have the work to do. You are going to see that on a proclamation. I am not even asking for that. It is like a stakeholder engagement question.

We hear the definition of 'judicial office'. The government has presumably asked the question, and yet we do not see any indication that this kind of reform, the subject of a proclamation available, as I understand it, to the government without another legislative measure is associated with this change. So I would just say that the amendment, in my submission begs the question, and as I say it is not unprecedented. As I understand it, it is a mode that has been adopted in terms of—at least, for example, in relation to the Chief Magistrate—a decade or so ago.

I just indicate to the committee, I regard it is passing curious if it had not come to the government's attention at all, much less being trumpeted by the Attorney and the government more broadly as part of what might be done by way of substantive improvement for the Masters while the name change is going on. So I would just ask the minister whether or not there is actually any information that might be provided to the committee in that line in any way, according to the full spectrum?

The Hon. S.E. CLOSE: The judiciary asked for these changes to the title so, when the member characterises it as exclusively having been instigated by the government, it is the case that that was a request for a change in title. The Chief Justice specifically indicated that the request was for a change in title and not any other associated changes. In the time since then, I am advised that we have not received any request for such changes.

The ACTING CHAIR (Mr Brown): Any further contributions on this clause? Yes, member for Heysen.

Mr TEAGUE: I think the committee is informed then by that answer, and I appreciate the minister's advice in that regard. Perhaps if I could put it briefly without artificially linking it to clause 3: does the government have any plans to investigate that aspect or any other substantive matter in relation to those matters that I have just raised?

The Hon. S.E. CLOSE: I am not aware of any such plans, but I will raise it with the Attorney-General.

Clause passed.

Clause 4.

Mr TEAGUE: We are here commencing part 3 of the bill and the first of what are a number of changes to the District Court Act 1991 that insert the new definition of Associate Judge and then—we have already covered judicial office—the deletion of Master and substitution of Associate Judge. I presume it is necessary to step through it like this, clause by clause. One might, in the vernacular, do a copy and paste or a find and replace and do it all in one clause, but here we are, one by one. Far be it from me to question the approach to the amending legislation. I think we will get to it: the Supreme Court Act's equivalent to subsection 3(2) is 5(2), so I think we are going to see, by the time we get to part 8, the relevant change to section 5(2) of that act, so we deal with both the District Court and the Supreme Court in turn.

While we are at the District Court, the change from Master to Associate Judge is one that comes against a background that is not so very longstanding in the court. The court itself was only created in August 1970 and at that time there were no Masters of the District Court. We had, in fact, a Local Courts Act Amendment Act 1969, as I understand it, that was relevantly applicable. There is then a key step in the circumstances that we explored at clause 3. I made reference to the Judges' Pensions Act 1971 which came into operation on 1 May 1971, as I understand it, and henceforth the establishment of the anomaly that the government might have occasion to reflect upon, because District Court Masters are not referred to for the purposes of that act at that time because the position had not been created.

Fairly hot on the heels of the creation of the court, late in 1970, is the coming into operation of the 1971 Judges' Pensions Act. There are no District Court Masters and so no occasion to refer to them. Unsurprising, there is no provision for the then non-existent District Court Masters. The trouble is that the situation has not changed as the result of any of the subsequent amendments to the act and we see that panning out.

The key point comes only 15 years later in 1986. It is a signal development in the history of the court. While we are reflecting on the District Court Act 1991, and those changes subject to part 3, the first of which is the present clause, we have established the role of Master from the outset. The Master's position is created some five years prior to the District Court Act.

There is an avoidable anomaly because there have been various amendments along the way, but this avoidable anomaly has been perpetuated at the time of the creation of the position and then subsequent. Crucially, at this time in 1986 as well, the Master's role is limited to the one that I have described in terms of the long history of the role and the various jurisdictions prior to it, in that the Master's role in 1986 is one that is properly characterised as being limited to administrative matters.

The Master is defined at that time as meaning a magistrate directed by the Chief Magistrate to sit on such courts of full jurisdiction as the then senior judge might require, duties limited to presiding over listings conferences. You get the gist at that time. There is a kind of a gatekeeper role, an administrative function, there is an ordering aspect to what is going on, but the role is very distinct from ordinary judicial duties.

A further observation that might be made about the circumstances of that time is that the jurisdiction of the court was then, during the period we are talking about, $100,000 and $150,000. Considerably limited, but of course, we are going back to 1986 dollars, but a jurisdiction that is considerably different and the establishment of a Master's role that is considerably different.

Unsurprising that if one were to take a point fixed in time in 1986, and say, 'Gee, that's not the role that we are now familiar with in terms of the exercise of judicial functions by Masters,' one might say, 'We are talking about a judicial function and this Associate Judge kind of concept might fit.' But for those who have participated in the court's process at all times since, during the period of time if not entirely going back to 1986 and the establishment of the roles, one will have appreciated that the understanding of what a Master does, the role of the Master, the special capacities and experience of the Master, have led to, in some quarters, a particular affection attached to the term and to the role.

There may well be quarters—again, I have not consulted them; it is not my role to do that—that say that over time the role of the Master as it is known in the District Court, as it has come to be established in terms of its function in the District Court, has evolved to such an extent that to a newcomer you might say they are judges. They are doing all of the functions one might expect of a docket judge in another jurisdiction; it is true.

That same, as it were, recognition of the seriousness of the judicial function—the role, responsibilities and so on—might in a very real sense be seen to be fully appreciated as attaching to the role of Master, and what is missing are the substantive ingredients to go with it, including those aspects of tenure, pension and the things that are attendant with judicial office.

Some would focus on the substance of that and leave aside the question of the name or indeed adopt it with affection and say, 'Well, that is part of our tradition now. We stick with that, we just make good on how important the role is by making good on the circumstances of the role: salary, pension and so on.' That substantive change is not seen in the bill, and there is no indication that substantive change is sounding anywhere else.

For present purposes, the question at least at the outset might start with: given the longstanding familiarity of the Master title and Master role, how does one come to land on this new title? Has it come from any sort of comparative usage and, to the extent that it has been the subject of a specific request by anybody, was there a particular author of the request, or is it really something that has been workshopped in a general way? Can the minister inform the committee as to the origins of the new title more particularly?

The Hon. S.E. CLOSE: The suggestion of the specific title came from the Chief Justice and is consistent with most other jurisdictions.

Progress reported; committee to sit again.