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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-10-30 Daily Xml
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STATUTES AMENDMENT (COURTS EFFICIENCY REFORMS) BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

The Hon. J.R. RAU: In relation to this matter, in the interests of getting this resolved quickly so that we do not waste any more time, basically the situation is that we will accept amendments Nos 1 to 4 in the Legislative Council. I think a number of those amendments were to do with jurisdictional limits which I know the member for Norwood had a view about. I had a different view about it but I think I said before there is no right or wrong answer to that. I have discussed it with the Chief Magistrate. The Chief Magistrate has indicated to me that they can live with it as amended, so I am not going to make an issue about it because I had a different number. I think it would have been better to start with a smaller number, but that is fine. The Chief Magistrate can live with it, and I want to get the bill through.

The second bit which I cannot live with is amendment No. 5 made by the Legislative Council. The reason for that is that that amendment would have meant that a person could become chief magistrate and by virtue of being appointed chief magistrate they would then become a District Court judge. They can then immediately resign as chief magistrate and we would be left with a District Court judge we did not expect and no chief magistrate. That was the problem with it. I believe there is an amendment floating around here which is—

The CHAIR: Will you indicate to the committee what you wish to do?

The Hon. J.R. RAU: Yes. This is the House of Assembly bill No. 15, motions moved by the Attorney-General, so this is the new part 6A which deals with the appointment of the Chief Magistrate. It basically establishes that if a person is appointed chief magistrate, yes, they become a District Court judge, but, no, they cannot decide, 'Well, I'm just going to jettison the chief magistrate bit and just telling everybody in the District Court, here I am, look after me.' That is basically the situation. There are obvious reasons why we would not want that to happen. You could be on this endless merry-go-round of appointing chief magistrates, and they decide they want to be District Court judges and never get one, so that would just be silly. We are moving amendment No. 5, and Nos 6 to 13 in the Legislative Council we are accepting. My understanding is that that is acceptable to the opposition.

The CHAIR: Can I suggest we deal with the three parts separately in case there are is any discussion?

Amendments Nos 1 to 4:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 1 to 4 be agreed to.

Motion carried.

Amendment No. 5:

The Hon. J.R. RAU: I move:

That this house disagrees with amendment No. 5 made by the Legislative Council but makes the following alternative amendment in lieu thereof:

New Part, page 7, after line 28—After Part 6 insert:

Part 6A—Amendment of Magistrates Act 1983

19A—Amendment of section 6—Appointment to administrative offices in magistracy

(1) Section 6—after subsection (2) insert:

(2a) A person is not eligible for appointment as the Chief Magistrate unless he or she is a legal practitioner of at least 7 years standing.

(2b) For the purpose of determining whether a legal practitioner has the standing necessary for appointment as the Chief Magistrate, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account.

(2) Section 6(3)—delete 'the Chief Magistrate or'

(3) Section 6(4)—delete 'shall' and substitute:

(other than an appointment as the Chief Magistrate) will

19B—Insertion of section 6A

After section 6 insert:

6A—Chief Magistrate to be magistrate and District Court Judge

(1) The Chief Magistrate will be taken to have been appointed as a magistrate and as a Judge of the District Court of South Australia (if he or she is not already a magistrate or a Judge of the District Court of South Australia).

(2) Section 6 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 applies to the Chief Magistrate and, for that purpose, the office of Judge of the District Court of South Australia will be taken to be the primary judicial office of the Chief Magistrate and service as Chief Magistrate will be regarded as if it were service as a Judge of the District Court of South Australia.

(3) However—

(a) the Chief Magistrate may not perform the duties, or exercise the powers, of a Judge of the District Court of South Australia while the Chief Magistrate holds an appointment as Chief Magistrate; and

(b) the Chief Magistrate may resign from the office of Judge of the District Court of South Australia and from the office of the Chief Magistrate without simultaneously resigning from office as a magistrate and such a resignation will not give rise to any right to pension, retirement leave or other similar benefit.

(4) The Governor may, by regulation, make provisions relating to existing entitlements, and recognition of prior service, of the person holding the office of the Chief Magistrate on the commencement of this section or a person appointed to the office after that commencement, including by making modifications to the application of an Act that deals with superannuation or pensions.

Ms CHAPMAN: The Legislative Council has reviewed a number of courts efficiency reforms, and the opposition will be supporting the motions, as moved by the Attorney-General, in response. The agreement to Nos 1 to 4 has been noted. In respect of amendment No. 5, we have a compromise position, essentially. Members here may not have been aware that the position of the government in another place had been to reject the opposition's amendment to deal with this question of a chief magistrate's appointment to be a District Court judge contemporaneously, the conditions of which flow as a result of the resignation from a position.

The government had previously presented a proposal, via the Attorney-General's contribution back in June (including in his press release), in which they claimed that the government's amendments were to bring South Australia in line with practice in New South Wales, Victoria and Queensland. What was clearly exposed in the debates in another place was that that was not the case. The Queensland provision dealt with this issue which identified that the Chief Magistrate in that jurisdiction may not perform the duties, or exercise the powers, of a District Court judge while the Chief Magistrate held the office as Chief Magistrate.

Whilst it was exposed that the proposals of the government were not consistent with other jurisdictions, the Hon. Stephen Wade presented a proposal to remedy the difficulty in this regard. The government's representative, the Hon Gail Gago, identified that she would not support that way forward, essentially identifying, she claimed, that the government had a concern, in that it would allow chief magistrates to resign as a chief magistrate without resigning as a District Court judge and resign as a chief judge without resigning as a chief magistrate.

Whilst the Hon. Stephen Wade had pointed out that the way to deal with some of the concerns raised was in fact to appoint one of the Supreme Court judges to undertake duties in the circumstance of a conflict, this further compromise which is now before us is one which essentially confirms that the chief magistrate will be taken to have been appointed as the magistrate and as a judge of the District Court of South Australia. However, the chief magistrate may not perform the duties or exercise the powers of a judge of the District Court while the chief magistrate holds an appointment as chief magistrate and the chief magistrate may resign from the office of judge of the District Court of South Australia and from the office of the chief magistrate without simultaneously resigning from the office as magistrate, and such a resignation will not give rise to any right to pension, retirement, leave or other similar benefit.

Personally, I think this is a clumsy way of dealing with it, but I understand that there is a compromise position on this, that this is the way to deal with concerns raised by a number of parties, and so on that basis we will not be opposing it. I mentioned that the government, having insisted that there be a provision for the chief magistrate resigning, that the provision that he or she must also resign as a District Court judge is one that we will accede to. We also acknowledge and thank the government's agreement to deal with and accept the amendments to deal with retrospectivity, that is to avoid the retrospectivity effect, and accepting the proposal to increase the small claims to $25,000.

I did read the debates in respect of the minor statutory proceedings also being amended to fit in with that. I had not been aware there had been any issue in this regard, but that has also been tidied up. Most importantly, which the Attorney may be surprised to hear, we are delighted that the government has agreed to accept the increase in the retirement age of magistrates from 65 to 70 years. We thank the government for coming to their senses in that regard.

I note this, because so many times in this jurisdiction we come in here with amendments to legislation. The Hon. Gail Gago, in the debates on this, objected to this proposal in another place, even though she was voted down on the 65 to 70 years, on the basis that the government was considering itself increasing the retirement age and had a suite of other amendments that they wanted to bring in on a review of the Magistrates Act generally.

It is just absurd to me that the minister or the Attorney would come in, and through their representative in another place, and say, 'We are not going to accept this, because we want to deal with this more broadly and it is more important that we do a complete review,' and yet every day we come into this parliament and make amendments to acts. In fact, I am about to deal with two tiny little amendments to trustee companies and to wills in this jurisdiction, when we have a whole myriad of problems in the succession and wills area, and I would hope that we are finally going to get a review on that legislation.

So, please, spare us these pathetic excuses which are raised in this instance in a deliberate attempt to deny the people who thought of this idea to act on it and to get it happening, to make sure it happened. The churlishness of the government is just beyond all comprehension because they do not want to be pipped at the post. They do not want anyone else to have any sensible idea. Do not come in with this idea that we cannot possibly do this because we have got a whole review and the next day—the next session, in fact, in the next few minutes—they will dish us up legislation that we will have to deal with to fix up bits of legislation.

Please, give us some decent explanation if you are going to be so churlish as not to give proper recognition to those in the parliament who have acted to remedy an ill, and in this instance it is. That is a rather qualified thank you, Attorney, but understand this: if you want to deny reasonable people the recognition that they deserve, then do it in a grownup way.

The CHAIR: Move it along, please.

The Hon. J.R. RAU: As always, the member for Bragg has tempered her charity with some vitriol. In relation to the Magistrates Court Act, we have been conducting a review with the Chief Magistrate, dealing with a great number of things, and it is true that we would have preferred all those things to go together so that the magistrate has had an opportunity to see the package that was being offered in relation to the magistracy. But, given the fact that we were going to do it anyway, I am quite relaxed about the opposition moving it because, as I said, we were going to do it, anyway. The question is whether it was done in this bit of legislation or whether it was done in—

The CHAIR: We can come back tomorrow.

The Hon. J.R. RAU: No, we will do it today. I am getting there.

The CHAIR: I suggest you move along, then.

The Hon. J.R. RAU: The other thing I wanted to say is this. As far as amendment No. 5 is concerned, I want to make the point that there may be circumstances where there is some sort of conflict or issue within the District Court where there are people who, for whatever reason, cannot attend to a matter and it might be handy to have somebody else. But, we are not doing it that way and that is fine. I am relaxed about it.

Motion carried.

Amendments No. 6 to 13:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 6 to 13 be agreed to.

Mr MARSHALL: I would like to speak on amendment No. 7 from the other place. This amendment relates to clause 20 of the government's Statutes Amendment (Courts Efficiency Reforms) Bill, in particular, to an amendment to the Magistrates Court Act 1991. Of course, this amendment deals with the threshold in the minor civil division of the Magistrates Court which is commonly referred to as the small claims jurisdiction.

Members in this house—and, of course, the Attorney-General—would know that I moved an amendment to the Magistrates Court Act myself back in July of last year to the exact effect that the Attorney-General is agreeing to in the house today. Peggy Hora was the Thinker in Residence who spoke about the need for cost-effective access to justice, and this was really a recommendation from her report back as far as 2010. We are pleased that the government is going to finally agree to this. It is a big win for small business which is struggling with increasing costs at the moment. It is a massive win for them. The small claims jurisdiction will allow small business with minor civil disputes to go without representation into the Magistrates Court and seek speedy and cost-effective remedy to actions that they may have.

I suppose that the important question to ask is: why has there been a delay? The Attorney-General came into the house today and he said that he has spoken to the Chief Magistrate on this issue and that the Chief Magistrate agrees that there is no problem with this threshold moving to $25,000. Well, it begs the question why the Attorney-General did not go and speak to the Chief Magistrate earlier in this process.

Why has it taken the Attorney-General and his department so long to go and have that conversation, because I can tell members that I had that conversation about 18 months ago. I think that it is very tardy of this government. It has held up the passage of this reform through its own action. Do not forget that, when I moved this originally in my own private member's bill, it was the government which actually opposed it. It would not have a bar of it. It is very disappointing that it has taken so long to come through, because all those businesses, all those small businesses and all those individuals have essentially been denied cost-effective and speedier justice than what has been delivered in the intervening period.

With those short remarks and being cognisant of the time, I will conclude my remarks and say that I am pleased that the government has finally agreed to this amendment, amendment No. 7.

The Hon. J.R. RAU: There is a little bit of fluff in there. He missed the point that I said to him in the first place, 'Yes, look that's fine. There's no correct answer.' I had a view. I went back to the Chief Magistrate for a view. In the end, it is my call. She has been an adviser. In the end it was not worth fighting about, so, fine.

Ms SANDERSON: I rise to speak in support of amendment No. 6. This amendment was an idea that actually came to my electorate office—the silly idea to keep the retirement age for magistrates at 65 when this very piece of legislation was being used to increase the Chief Magistrate's age of retirement to 70.

Given our ageing population and the need to encourage people to work longer, it makes perfect sense to lift the retirement age of magistrates to 70; and the Magistrates Association, as has been mentioned, was consulted and was supportive of this change. To quote the Hon. Stephen Wade from the other place:

The amendment supports the retention of skills, knowledge and experience in our courts. It brings the retirement age of magistrates in line with the retirement age of judicial officers in the superior courts and recognises that people over the age of 65 still have an enormous contribution to make.

I was astounded when I read Hansard and that the Hon. Gail Gago in the other place stated:

In principle the government does not oppose the increase; however the government is already considering increasing the retirement age of the magistrates in the context of a wider review of the Magistrates Act 1983, and therefore the government opposes the amendment.

Given that it was the government that used this statutes amendment to lift the retirement age of the Chief Magistrate which brought this to my attention, I felt it only reasonable to use the same piece of legislation to increase the retirement age of magistrates. I asked why both could not be done at the same time, and I am glad that the government came around to accept the idea.

Motion carried.


At 17:59 the house adjourned until Wednesday 31 October 2012 at 11:00.


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