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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-03-21 Daily Xml
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STATUTES AMENDMENT (APPEALS) BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

The CHAIR: Attorney, we have three amendments from the Legislative Council.

The Hon. J.R. RAU: If I might have a look at those for one last time because I would hate to agree to something that was not good.

The CHAIR: Just before you do, can I remind the deputy leader that she should not be here until eight minutes past four.

Ms CHAPMAN: Can I ask you, Chair, whether you would be gracious enough to consent to my remaining on the basis that I understand that this has been scheduled to deal with some amendments from the upper house, and the Attorney and I are the principal and, I think, only speakers on this bill.

The Hon. J.R. RAU: Chair, if the honourable member is not going to occupy any of our time, I am quite happy for her to be in the room because I would like her to be here at the end. If she is wanting to speak, of course, that would be contrary to the ruling of the Speaker.

The CHAIR: Okay.

The Hon. P.F. Conlon interjecting:

The Hon. J.R. RAU: Well, I am not giving her permission; he is, apparently.

The CHAIR: I think that we really have to abide by the ruling of the Speaker, and the honourable member should be out of here until eight minutes past four.

The member for Bragg having withdrawn from the chamber:

The Hon. J.R. RAU: I was hoping to observe the Speaker's order in its spirit. In any event, the good news after all that is that we have considered the amendments proposed by the other place and they are acceptable. I move:

That the Legislative Council's amendments be agreed to.

The Hon. I.F. EVANS: Maybe for the benefit of the committee the Attorney could explain the three amendments that he seeks to move that we agree to.

The Hon. J.R. RAU: The first one is to make it clear that where we use the term 'Full Court'—this is to remove any ambiguity; I think it is pretty obvious anyway, but the suggestion up there is that this be done—it means Full Court of the Supreme Court. That is alright, isn't it? Is everyone happy with that? Good.

The second one is in the context that we are permitting the court to be constituted by only two people instead of three. In that context, it is to provide further clarity as to what the situation would be in the event of those two not agreeing—because normally we would have three, in which case if one did not agree you would know the number, because you cannot have an even number out of three obviously, but if you have two you can have an even number. The question is: if you have two and you wind up with one each side, what happens then? That is what this is attempting to deal with. Amendment No. 2 states:

The decision of the Full Court when constituted by 2 judges is to be in accordance with the opinion of those judges—

That is if they agree—

or, if the judges are divided in opinion, the proceedings are to be reheard and determined by the Full Court constituted by such 3 judges as the Chief Justice directs (including, if practicable, the 2 judges who first heard [the matter]).

In other words, we get a third person in the game to break the deadlock.

The Hon. P.F. Conlon: Why did you have three in the first place?

The Hon. J.R. RAU: We dealt with that the first time this was here. In answer to the member for Elder, the reason is that the Chief Justice has advised that sometimes he finds it difficult to accommodate a full bench of three people in minor matters when they are doing other things.

The Hon. P.F. Conlon: Just have one then.

The Hon. J.R. RAU: It would be hard to call that an appeal.

The Hon. P.F. Conlon: A justice's appeal does that.

The Hon. J.R. RAU: In fact we do have a single judge, as quite rightly said, in a justice's appeal, but these are matters other than justice's appeals. It might, for example, be a leave to appeal from a criminal conviction. The third amendment achieves exactly the same outcome. To be entirely frank, I think these are possibly unnecessary but certainly not unhelpful.

The Hon. I.F. EVANS: That is my understanding of the amendments, having followed this matter with great interest for some time. This matter was raised, of course, by those in the legal fraternity and they were concerned about whether the Full Court should sit as three courts or two courts. As I understand it, they brought forward some evidence in relation to the New South Wales courts and some of the acts there which allow two judges to sit and not three. Those in the legal fraternity are concerned about that process, and these amendments go some way to satisfying those concerns, so the opposition, as I understand it, is supporting these amendments.

Motion carried.

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