Bills

Statutes Amendment (Attorney-General's Portfolio) Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:20): Obtained leave and introduced a bill for an act to amend various acts within the portfolio of the Attorney-General. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:21): I move:

That this bill be now read a second time.

I am pleased to introduce the Statutes Amendment (Attorney-General's Portfolio) Bill 2024. From time to time, Attorney-General's portfolio bills are 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 matters in a single omnibus bill rather than a separate amendment bill for each act.

This 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 Court Act 1983; and the Supreme Court Act 1935.

The changes are to replace and update references to the title of '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.

In relation to 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 judges of the Supreme and District courts to discontinue 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 or work performed by Masters of the Supreme Court. Moreover, it is considered to be an inappropriate 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, I am advised, to retain the title of 'Master'. The title is no longer used in Queensland or Victoria. In Tasmania, New South Wales and the ACT, 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 of 'Master'. Importantly, the existing powers and functions performed by Supreme Court and District Court Masters, as well as their existing terms and conditions of appointment, will remain unchanged.

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 consistent trends 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 me as Attorney-General for recommendation to the Governor to be appointed as King's Counsel. Where an application is made, I 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 the legal practitioner as King's Counsel. There is currently no discretion for me 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 Party, 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 or King's Counsel appeared to be economic concerns. In particular, it was noted that there was no evidence put forward to support the assertion that Senior Counsel are at some sort of commercial disadvantage when competing for international briefs because the SC title is supposedly less known.

I think that is 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 some sort of economic disadvantage, the vast majority of jurisdictions in Australia retain the Senior Counsel title and have not elected in any way to return to the use of King's Counsel. This includes in particular 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 titles would seriously weaken the independence of the legal profession and judiciary from the executive. In particular, His Honour observed that the appointment of QC originated at a time when the Crown was more directly involved in the exercise of judicial power, and the appointment of QC is nothing more than the conferral of an executive favour.

Given this, we consider it appropriate to abolish the appointment of King's Counsel in South Australia to bring this state in line with most of the country and to put an end to this anachronistic title. To that end, clauses 31 and 32 of the bill amend the Legal Practitioners Act to repeal the statutory provisions that currently allow for the appointment of King's Counsel and to expressly extinguish the Crown's prerogative so that appointments will not be made in the future.

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

While the proposed amendments in this bill are only minor, they present an opportunity to bring South Australia into the 21^st century. In doing so, 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 legal profession. I commend the bill to the chamber and seek leave to insert the explanation of clauses in 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.

Debate adjourned on motion of Hon. L.A. Henderson.