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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Bills

Statutes Amendment (Attorney-General's Portfolio) Bill

Committee Stage

In committee (resumed on motion).

Clause 13.

Ms CHAPMAN: I have asked a question, and I am waiting for the answer.

The CHAIR: Sorry, he is answering what?

Ms CHAPMAN: The question I asked before lunch.

The CHAIR: A question from beforehand, right. Are you right, Attorney?

The Hon. J.R. RAU: I am up to a point, Madam Chair. The member for Bragg asked me a number of questions before the luncheon adjournment, and they have sort of just merged into a single basic question in my mind. I am wondering if she could just refresh my memory about the last in that series of questions.

Ms CHAPMAN: In respect of the Magistrates Court Act provisions, the terms of that act make provision for the deputy to undertake the duty that we are referring to in this legislation. In the event that the deputy is unable or unwilling to undertake that role as part of their duties as the deputy, then of course you have the power to appoint a new deputy. The question was: why would you not elect that option rather than coming in here and presenting this as some kind of tidying up provision?

The Hon. J.R. RAU: Let us follow that little hypothetical through. The hypothetical is I have a deputy chief magistrate and a chief magistrate. The chief magistrate, either by reason of being on leave or being unwell, is not available. The deputy chief magistrate is either not around the place or is on leave or says, 'I do not want to do the job.' Incidentally, not everybody wants to do this job, but that is sort of by the way.

The question is: why do I not make somebody else deputy? The answer could be put another way. The punishment for the deputy chief magistrate for not agreeing to take a job they do not want to do is that I sack them as deputy chief magistrate so I can appoint 'my friend'—because that is the way this thing has been sort of tricked up by everybody—to be deputy chief magistrate so they can go in the job. I think that is horrible—absolutely horrible.

Ms Chapman: You can do it anyway.

The Hon. J.R. RAU: Here is the point, isn't it? If I can do it anyway and this thing was this great big conspiracy—

Ms Chapman interjecting:

The CHAIR: Order, member for Bragg!

The Hon. J.R. RAU: If this was something that had been cooked up by the illuminati and I am part of this thing then, of course, I would have done that already, wouldn't I?

Ms CHAPMAN: The only thing missing in that little scenario and performance, Attorney, is that you already have a current law which says the deputy does it. You did not inquire on this occasion whether there was any difficulty with that, as had been exposed in relation to the position of a vacancy coming up in the District Court. You did not make any inquiries if there was any problem with that. You are suggesting to us in this committee that this is just a little tidy up to make it all the same as the District and the Supreme courts to avoid a future problem.

That is what you are trying to convince us of, and yet you have a Magistrates Court Act which makes certain provision and does allow for the extraordinary circumstances where, for whatever reason, there is no-one to fill the job when the chief magistrate is unwilling or unable to do the job and there is no deputy in a position to do that. In those extraordinary circumstances you have power to act under this legislation.

The Hon. J.R. RAU: Point number one is that I completely disagree with that last statement. Point number two is—and I am going to say this really slowly again—this has nothing to do with the person who currently occupies the role of deputy chief magistrate.

Ms Chapman interjecting:

The CHAIR: The deputy leader is reminded she is on two warnings from question time and I will not hesitate, considering there have been a number of questions already on this clause, as I have just been reminded by the table, so we need to move things along in an orderly fashion.

The Hon. J.R. RAU: I will take it into a different context so it is perhaps easier to comprehend. You are in your backyard one day minding your own business—a nice place to be—and your neighbour's house burns down. The house just burns down right next to you and you speak to your neighbour who luckily is not in the house. They come home and the house is burned down and you say, 'Terrible thing,' and they say, 'Yes, and you know what? Thank God we had insurance because if we did not have insurance we would be in a terrible mess.' And you think, 'Hey, that is an idea. What if my house burns down?'

Mr van Holst Pellekaan: Or a forest.

The Hon. J.R. RAU: Or a forest.

The CHAIR: Order!

The Hon. J.R. RAU: 'Wouldn't it be nice if I had insurance?' So being a prudent householder who has seen the District Court nearly burn down in my metaphorical analogy-type scenario—

Ms Chapman interjecting:

The CHAIR: Order! The deputy leader is reminded.

The Hon. J.R. RAU: —and having suffered the slings and arrows of outrageous fortune by being tortured verbally by the member for Bragg for having rushed this thing in here at the last minute to cover up my failings, having been so chastened and absolutely scarred by that, I have decided never again will I be in the position where the member for Bragg can tear me to shreds for having to rush something into this parliament at the last minute. I have peered into the crystal ball. I have seen the unlikely but possible and I have decided to put my insurance here in the legislation.

Clause passed.

Clause 14.

Ms CHAPMAN: This also deals with the question of reform under the Magistrates Court Act. My question now is: having decided that you wanted to make provision for this contingency, why was it necessary to remove provision for the first stage being that the deputy do the job and then, in the event that they are not available, that there be appointment by someone else?

Given that that is one of the circumstances in which it is appropriate to have a deputy, and as much as we have deputies, whether in government departments, magistrates courts or anywhere else, so that they can take the leadership in circumstances like this, especially as it is specified in the act, why do you not add a clause to provide that in the event that he or she was unable or unwilling to do the job, you pick an arrangement with your captain's pick?

The Hon. J.R. RAU: I have got the question. The answer I have given umpteen times already. Quite frankly, the situation in the superior courts has always been that, even though there was no formality about who should be the stand-in person in the event of the senior judge being unavailable, the convention had more or less been that it would be the senior puisne judge and if, for some reason, they were not interested or suitable, it might be somebody else.

I do not know that I can expand on this anymore. I do not see why the Magistrates Court should be any different to the other two courts, full stop. The problem is this is all about the conspiracy theory. I do not know how many times I have to say it. I have had a number of meetings with Dr Cannon. I do not have any particular issue with Dr Cannon. He has been, actually, quite helpful in the role.

This is not about Dr Cannon but it might be that we are in the circumstance because of bad luck or coincidence or serendipity where the fact that we have not passed this thing is an embarrassment, and the opposition, if they succeed in blocking this, will be totally to blame for that and the theatre of having to rush something into this place to deal with a problem we should never have had will be their responsibility.

Ms CHAPMAN: I can take that threat, Attorney, and I welcome it, in a way. What I will say is this. You keep saying you want to have consistency with the other courts and their legislation but let us remember the retirement age issue and, again, you keep saying, 'I have no issue with Dr Cannon having this position, this is not about him,' etc., but two years ago we were standing here in this parliament having to deal with the government's attempt to reduce the retirement age—not to be consistent with other superior courts but because you wanted to decide to move it from 70 to 65 years of age. Let us not be cute about this.

The Hon. J.R. Rau: Hang on, you've got it completely back to front.

Ms CHAPMAN: You may say that, but you backed off at the time, so let's be realistic about this.

The Hon. J.R. RAU: Number one, we have moved from the peripheral to the utterly irrelevant. We are now talking about something completely different. We are back into the Chewbacca defence again. The thing is I made no secret of the fact that we were in favour of moving it from 65 to 70. I made it clear at the time that we intended to do that as part of a portfolio bill, and I cannot exactly remember which portfolio bill it was.

For reasons that evade my comprehension, the member for Adelaide, in one of her few interventions into the Attorney-General's Department, found it necessary to move an amendment when another bill was in the place to increase the retirement age of magistrates from 65 to 70. It was an unusual intervention by the member for Adelaide. At the time I said, 'I am not going to oppose this amendment because I fully intend to do this myself.' It is just that—

Ms Chapman interjecting:

The CHAIR: Order!

The Hon. J.R. RAU: Slow down. Read the Hansard, member for Bragg.

The CHAIR: Order! Sit down. Deputy leader, I have to ask you to observe the rules of the house. Do not interject. Attorney.

The Hon. J.R. RAU: Anyway, I was just setting the record straight. I have never had an argument about retirement ages being moved to 70. This has nothing to do with Dr Cannon. It has got nothing to do with retirement ages. It has got nothing to do with pensions. It has got nothing to do with salaries. It has got nothing to do with termination of employment. What it has got to do with is, in the event of the court being leaderless, what is good enough for the Supreme Court and good enough for the District Court should be good enough for the Magistrates Court. Full stop.

The committee divided on the clause:

Ayes 21

Noes 18

Majority 3

AYES
Bettison, Z.L. Bignell, L.W.K. Brock, G.G.
Caica, P. Close, S.E. Digance, A.F.C.
Gee, J.P. Hildyard, K. Hughes, E.J.
Kenyon, T.R. Key, S.W. Koutsantonis, A.
Mullighan, S.C. Odenwalder, L.K. Piccolo, A.
Picton, C.J. Rau, J.R. (teller) Snelling, J.J.
Vlahos, L.A. Weatherill, J.W. Wortley, D.
NOES
Bell, T.S. Chapman, V.A. (teller) Gardner, J.A.W.
Goldsworthy, R.M. Griffiths, S.P. Knoll, S.K.
Marshall, S.S. McFetridge, D. Pederick, A.S.
Pisoni, D.G. Redmond, I.M. Sanderson, R.
Speirs, D. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
PAIRS
Hamilton-Smith, M.L.J. Pengilly, M.R.

Clause 15.

The CHAIR: Do we have any questions on clause 15?

Ms CHAPMAN: Yes, I do. I think we have to move that—

The CHAIR: What's wrong, member for Stuart?

Mr VAN HOLST PELLEKAAN: The Auditor-General's Report?

The CHAIR: Order, everybody! Please take your seats or leave the chamber.

Progress reported; committee to sit again.

Mr GARDNER: Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed:

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