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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Statutes Amendment (Youth Court) Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:36): If I may refer back to the Statutes Amendment (Youth Court) Bill and indicate that, of the number of amendments that the bill proposes to the Youth Court Act, the most concerning to us is the potential for someone other than a District Court judge to be appointed to conduct the management and administration and trials within that court. Can I say that, of the material presented in the Attorney-General's second reading, there is nothing disclosed that suggests that the current operation of the court, with its current composition of its judiciary, in any way compromises the important work that it does or that it does not conduct it in anything other than an efficient manner.

In short, in addition to the composition of the Youth Court, there are a number of amendments which flow from that, in particular to enable the magistrates to step up to undertaking a number of the duties that currently occur in the court. They include the capacity for magistrates to undertake and hear major indictable matters (that is, the trials of these), which currently is reserved for the Senior Judge of the Youth Court and/or another judge who may be brought in to hear a particular case. The bill includes the capacity for magistrates to do this in addition to their current role where they do have a capacity to impose sentences in major indictable matters where the accused has pleaded guilty.

The Attorney-General did point out that during 2012-13 there were a number of major indictable matters listed for trial. There were 52 of those; 12 proceeded to trial. In 2013-14, 28 major indictable matters were listed for trial. Of those, only four actually proceeded to trial. I think implicit in that statement by the Attorney is that somehow or another the Senior Judge is sitting around with not much to do, which does beg the question, if that were the case, then why is another judge brought in from time to time to hear cases as required to supplement that work?

Quite frankly, if there is to be this innuendo that somehow or another they do not need a full-time judge in this role—that is, there is not enough work to do—then surely the better approach is to look at whether the District Court judge who is in this role resumes some other duties as a District Court judge, rather than leaving a situation where the District Court, as we all know, is exploding with trials that are awaiting hearing and of which there are long waiting lists. There is no explanation given as to why that would not be done or considered or suggested or any way accommodated if that were the case.

The other amendments which the bill brings about would allow magistrates to impose a sentence of detention for up to three years. He says that, as there is a maximum period of detention that can be imposed when sentencing a person as a youth under the Youth Offenders Act, this change is in line with the position in the Magistrates Court where magistrates can impose sentences of imprisonment of up to five years.

Also, the measure is to allow magistrates to hear applications for extensions of time, and to allow magistrates to hear applications under the Adoption Act and the Family Relationships Act. So, in essence, if we are going to get rid of the judge or judges from the court, then magistrates have to have these extra powers to undertake the work of the Youth Court.

So let's go back to what others say. Bear in mind that the Youth Court was established in 1978 by the Hon. Don Banfield, and in its earlier form at that stage it was pursuant to the Children's Protection and Young Offenders Bill. At that stage this bill was introduced subsequent to the Royal Commission into the Administration of the Juvenile Courts Act 1971-75, and it also followed not only that royal commission but there were some substantial allegations raised by Judge Andrew Wilson at that time.

I must say I read with interest the contribution by minister Banfield at that time because what he said in respect of the work of the children's court has a sort of ringing similarity to what we have all been reading in the Chloe Valentine case. With regard to the policy of the government as enacted in section 3 of the Juvenile Courts Act 1971-75, the contribution states, namely:

In any proceedings under this Act, a Juvenile Court or a Juvenile Aid Panel treat the interests of the child in respect of whom the proceedings are brought as the paramount consideration and with the object of protecting or promoting those interests shall in exercising the powers conferred by this Act adopt a course calculated to—

(a) secure for the child such care, guidance and correction as will conduce to the welfare of the child and to the public interest;

(c) conserve or promote as far as possible a satisfactory relationship between the child and other members or persons within his family or domestic environment and the child shall not be removed from the care of his parents or guardian except where his own welfare or the public interest cannot in the opinion of the court be adequately safeguarded otherwise than by such removal.—

any and, if so, what changes by legislation or otherwise are necessary or desirable for the proper implementation of that policy.

There was a report to government in July 1977. That was undertaken by Judge Mohr, formerly of the Supreme Court. There was a working party then consisting of Judge Kingsley Newman, the then senior judge of the juvenile court, Mr Gordon Bruff, deputy director-general of the community welfare department, and Ms Anne Rein, the research officer from the Attorney-General's Department.

Of course, the language has changed and, for some consistency with the history of this matter, I also place on the record that at that time we moved to change the language (obviously, to make it more contemporary) and the juvenile court became the children's court, and there was a very clear distinction between its civil jurisdiction and its criminal jurisdiction. I think it was pointed out by a number of members in the debate at that time that, even at that stage, members accepted that it was utterly absurd that, in a case of neglect by a parent or a guardian of a child, the child should not be identified as if they had committed some offence—that they were a neglected child and somehow or other it was presented in the court approach as though, in fact, this was an in-need-of-care case, somehow or other placing the responsibility onto the child.

The parliament of the time acknowledged the importance of recognising the distinction and that there should be a distinct civil jurisdiction to accommodate that: and let's not have any more language, at that stage, of children being treated as in need of care and control as if in some way this was their responsibility. There were some other reforms at that stage which are not relevant to what occurred.

Since then, in 1993, we changed again, contemporising how we managed the children's court. It changed its name to the Youth Court, again accommodating a more contemporary view. At that stage, the judicial structure of the court was retained. There was no interruption or interference with the senior judge, being a District Court judge, being designated by proclamation as the Senior Judge of the Youth Court, together with other designated judges and magistrates, as we have already discussed. The only thing that occurred in 1993 in respect of this was that there was a limitation on the length of appointment of a judge or magistrate to the Youth Court to a term not exceeding five years.

There were also some amendments to accommodate victims having the right to be present in court. Remember that the environment in which the Youth Court operates is one in which the public is not admitted and media publication is extremely limited, essentially to ensure that, whilst the public is entitled to have particulars of the outcome of cases, names of the children, and sometimes other parties' names that could effectively identify the child, are prohibited from publication.

That is the general history in the last 40 or 50 years. We have recognised the importance of having a separate court, we have acted to secure that, instead of being allocated into three different courts that adults have to be sent to to deal with their matters, all of their matters are dealt with in the Youth Court.

If it is the government's contention that we do not need to have a senior judge, that is, a District Court judge as the Senior Judge, surely it follows that we do not need judges for anything. Under the Transforming Criminal Justice reforms of the government, are we going to go to the lowest qualified, to the least experienced, in all of our courts?

Is this just the beginning? Judges are going, we do not need them in the Supreme Court? Chris Kourakis, His Honour, can start cleaning out his desk. The District Court, we do not need them. Why would we need them? If magistrates are accepted as the cheaper option, as being suitable or adequate to undertake all levels of determination in our courts and tribunals, then why would we need judges at all? We would get rid of all the judges in the Industrial Court, we would just appoint a few more magistrates, and it would be transforming criminal justice. We would have the cheap option.

I do not for one minute advocate that, but I find it quite offensive and quite concerning that the government would start as almost the lowest hanging fruit and pluck out the Youth Court as being one of the most important courts in terms of the business they do in our court structure and that it should be marked out for downgrading in this way. I have said in opening that I do not in any way reflect on the work that the magistrates already do in this court, but it is of great concern to me that this is the approach the government has taken.

Unlike 1978, after there had been a royal commission into juvenile justice and juvenile court processes when the government introduced a bill to set up the new structure, here the government has decided that, before Commissioner Margaret Nyland—a former Supreme Court judge herself—has reported on her inquiry into children's protection systems, it is going to progress the matter. Why would you progress a reform in respect of the Youth Court before you had the report of the royal commission? I have asked that question a number of times in this house just in recent times.

In the environment in which we have had the Chloe Valentine coronial findings, we have already heard in this parliament the Minister for Education and Child Development tell us that she is not going to be progressing—in fact, her government is not going to be progressing—any reforms in respect of adoption until they have concluded an inquiry in relation to that by a professor from one of the universities. She is awaiting the findings of Ms Nyland's royal commission before she progresses consideration of the children's commissioner, which has been the subject of litigation and much debate in this house. When she has that, she will progress it. I am paraphrasing this but, in essence, she is respectfully taking that into account.

We have an option, though, and one option is that the Attorney-General asked the commissioner to give a view prior to considering the introduction of this bill; that is, 'I know that you are undertaking considerable terms of reference, but before I progress with this could I have your opinion on the Youth Court reforms that I propose?' It appears that is what he did—that is, the Attorney-General did provide a copy of the draft bill to Commissioner Nyland and she provided her view to the Attorney.

In the course of other consultation with Ms Nyland some months later, it appeared that there had been at least her view sought. More recently, on 1 May, I received a letter from the Attorney answering a number of other questions I had asked about remuneration of judges and magistrates, and in that he forwarded a copy of Ms Nyland's letter. There had been no mention of this in either the second reading or during the course of the debates in this to date, which I think is concerning in itself.

In any event, it is absolutely clear, now that the letter has been provided by the Attorney, that Ms Nyland had a different view. Her view, in short, was that the management of the court and leadership of it should remain with a senior judge, who should be a District Court judge. She also had this to say:

You will appreciate that the Youth Court plays a significant role in shaping child protection policy and practice in this State. It has the responsibility of making some of the most important judicial decisions affecting our community, ie decisions which impact on the welfare and development of vulnerable children. It has therefore long been regarded as a specialist jurisdiction in which judicial officers are required to have a comprehensive understanding of the special challenges involved in child protection work, including knowledge of such matters as child development and attachment issues. It is important that the Court be consistent in its expectations and in the application of relevant legal principles to difficult family situations. I believe that specialist leadership is necessary to ensure that those aims are met. I am therefore concerned that the positioning of the Court under the management and leadership of the Chief Magistrate, who has responsibility for the much larger and more generalist Magistrates Court, will undermine the Court's capacity to fulfil its special functions.

I can hardly believe that the Attorney-General, having received this letter of advice from Commissioner Nyland, would even progress this bill, but he did. For reasons I have already outlined in this debate, we are not at all confident that it has been done for the benefit of children but to, in fact, try to save money. In the face of this advice, the following statements are concerning to me:

There have also been suggestions that the Court have an expanded role in the management of short-term care and protection orders, as well as family reunification projects.

In light of recent events, the confidence of the public in the ability of government organisations to protect our vulnerable children from harm is at an all-time low. I believe that confidence will be further diminished as a result of this proposal, which removes the specialist leadership of a senior Judge of the Youth Court and effectively downgrades the Youth Court to simply being a branch of the Magistrates Court.

Commissioner Nyland's words obviously have gone unheeded, and yet I can confidently say that she is someone who has served on our Supreme Court for an exceptionally long time in a well-recognised career, with decades of work in jurisdictions in which children were the centre. I worked with Her Honour in private practice, although in different firms, and I saw firsthand her level of experience, understanding and expertise in this area. She then had significant service in the District Court and the Supreme Court and now has this role after being appointed by this government as a commissioner in this most important area of children's protection systems. It just seems almost incomprehensible that the government would want to progress this bill in light of that.

As if that was not enough, the government invited Judge Peggy Fulton Hora, a Californian Superior Court judge, who has decades of experience, to come to South Australia as a Thinker in Residence, a program initiated by the former premier. Her Honour obviously had considerable experience, and in particular she was very keen to travel the world and see and share her experiences, particularly in the area of juvenile administration. She was a refreshingly dynamic speaker; in fact, I attended a number of her forums and read her papers, and ultimately I was able to view reports to the government about how she felt we should be dealing with our children in a number of fields, and one of them is the juvenile justice area.

I think it is fair to say that she was a strong advocate of the view that not only should administration in respect of juvenile justice and child protection have senior judges lead and administer them but she also had a very strong view that would also help in juvenile justice, for children who were in breach of their obligations—on bonds or parole and the like—to be brought back before the judge and not be left under the supervision of parole officers or persons in charge of their bond, and the like. She saw the role for the Senior Judge in the effective management and scrutiny of these children's recovery and rehabilitation, and that if they slipped off the fence, if they failed in some way, that they should be brought back into the court. She was quite strong on this view.

She also gave very valuable advice to us, particularly me, when I considered her work on how we treat repeat offenders in the juvenile arena. She was very clear that the type of approach that the government took forward, which was to treat child repeat offenders with mandatory sentences, as quite abhorrent. There were a number of other academics and bodies at the time who understood how significant that legislation was in breaching our United Nations' obligation in respect of children. I have always revered her contribution, which she finalised in her report, entitled 'Smart Justice', to the government, and of course it was then available for us to view. I think she had a lot of wise words and advice to give us, and this bill suggests that it is in direct contradiction of that approach.

The other matter which is now public—and we have the bill—is that the government forwarded a consultation draft of this bill to the Law Society of South Australia. They have also made it quite clear that they have concerns about the bill. They have covered a number of other areas of concern that we have not introduced as part of foreshadowed amendments, because we take the view that there is an opportunity for some reform provided it is under the supervision of the court.

In short, the society says that it is not opposed, in principle, to the removal of full-time judges from the Youth Court provided that what the higher court will hitherto reserve for the judge remains with the judge with experience in the Youth Court, and I have referred to that before. If there is any suggestion somebody is sitting around with nothing to do, then we can change that process. However, their job at the moment is to run and administer the court and deal with all the major indictable matters. They claim that dealing with youth is an area of specialty and all major indictable matters should be dealt with by a judge.

I also place on the record that the society also raises the following in respect of the importance of having a District Court judge in a leadership role:

It is generally accepted that developmental, emotional, psychological and dependency issues, and their impact on offending, rehabilitation and sentencing generally have a much greater relevance in youths. We therefore suggest that it would be counter-productive, if not imprudent, for specialists to be removed from the Youth Court.

This is one important reason why the Society believes the Youth Court should not be seen, and therefore treated, as the equivalent of the Magistrates Court for young offenders.

The other important fundamental difference between the two jurisdictions is seriousness of the offences in the Youth Court. Unlike the Magistrates Court, there is no ceiling in the Youth Court. If there is to be an analogy drawn with the adult jurisdictions, it should be that the Youth Court is part Magistrates Court and part District/Supreme Court.

Transforming the Youth Court into one administered by magistrates, expecting the oversight of the Chief Magistrate, tends to undermine the seriousness of the major indictable matters in the Youth Court. Major indictable matters are no less serious, if not more serious, in the Youth Court than in the adult jurisdiction. We therefore cannot comprehend the policy behind the proposal that a magistrate will preside over major indictable trials in the Youth Court.

The Society's position is that only a judge should hear, determine and otherwise dispose of major indictable matters in the Youth Court. The fact the charged people are youths cannot justify empowering a magistrate to deal with such matters.

I also point out that it is folly to have magistrate decisions then be appealable to the Full Court—which would be the logical extension of that and be a waste of money. Currently, of course, they get appealed to a judge and that reduces the call on the valuable resources of the Full Court. There is also an expression in respect of giving the judicial officer an unfettered discretion to require a youth matter to be joined with an adult matter. Again, the problem of this would be overcome, of course, if we maintain the current position, namely, the Senior Judge being a District Court judge.

There have been expressions of concern raised by people we consider the government should be listening to, and it remains of concern to me as to why the government would want to advance this in light of Commissioner Nyland's recommendation, even before she presents her report. I do not understand why it is acceptable that the government does not progress and make any decision on whether we have a commissioner for children with investigative powers, a reform which we say would provide some protection for children—and in light of recent events that I have referred to, a very necessary one—when that report is available, yet they want to progress some of the amendments arising out of the Coroner's findings in respect of the child protection act reform without having received Ms Nyland's advice on that.

We understand from questions in this house that Ms Nyland has been shown that other piece of legislation. It has been introduced in the house, so I will not go into detail, we will be debating that, I think, in early June, although I did receive an invitation to consider whether we do it this week. As the Attorney knows, we have not had an opportunity to put that before our party room to consider it or, indeed, receive the submissions back from those we have sought advice from in that short time.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: The Attorney wants to be assured that he is not going to be accused of dawdling on that matter. I think it is fair to say that the government's response to Mr Johns' coronial findings was swift (relative to historical matters), and I commend him for that, but do not think that in any way will protect or shield him from the shower of criticism I will be giving him with respect to his government's failure to protect children, I can assure him of that. I will give him credit for the fact that he at least rushed out to protect the Minister for Education and Child Development in his new gloried role of Minister for Child Protection Reform to answer all questions on this matter. That was an act of chivalry which was certainly noticed. In any event, it does not mean that we can compromise that position.

It is fair to say that in saying that we are not going to be criticising delay, nor will we compromise our responsibility to properly consider the legislation. It is quite clear that the content of the bill is not one of which there is some urgency to require it. I think that any member of Families SA who has not read Coroner Mark Johns' findings should do so immediately and, secondly, should be left in no uncertain terms, even if they have only read the directions that have been issued by the chief executive, of what their obligation is. There were very significant deficiencies in their handling of the Chloe Valentine case and the matters of which we are seeking legislative endorsement have already well and truly been brought to the attention of those personnel, and I would hope that Mr Harrison, as the chief executive, has also had a very good read.

As to the question of a new trigger for the implementation of automatic guardianship in favour of the minister, to the best of my knowledge (just for the record on this) there are no known cases of which there is some imminent birth which would need the protection of that piece of legislation. In any event, the government is still working on how the process is going to work, according to briefings we had today. I do not want there to be criticism either way with respect to the government's preparedness to act promptly on those matters, but nor should we be compromised. Should any matter come to the attention of the government which should justify the advancing of legislation, for any matter but particularly the protection of children, then of course we are happy to hear from them.

We will, therefore, be progressing with amendments in committee to remove, where it applies, reference to the chief magistrate as being the optional alternative to be the leader and senior judge in the Youth Court. There are a number of amendments to cover that, but I indicate for the purposes of this debate that that is the ill we say will be remedied by that.

The other matter I mention, which was actually brought to my attention by Mr Johns' coronial findings in April, is that there was a letter from the Senior Judge of the Youth Court entered into the evidence of that coronial inquest in respect of the question of numbers of applications under the Children's Protection Act. There has been a lot of discussion around the processes that the department used, or failed to use, in dealing with applications for assessment before the Youth Court.

Again, these are very serious matters, but what is of concern to me is that there was evidence in the findings by Coroner Johns suggesting, as a rebuttal to the assertion that officers of the department were concerned that if they made applications to the court they would fail, that the Senior Judge provided in his letter to the Coroner details of the hundreds of applications that had been brought over the past three years. He confirmed in detail that an order had been made on every single application for the preceding year—not all, in terms of exactly what they had sought; however, not one single application had been rejected.

It concerns me that we have a situation of a court which, on that information, was a direct contradiction of the department's excuse for not applying provisions. I must say, we are still awaiting answers to questions in this parliament as to the number of drug assessments that have been ordered and/or implemented pursuant to provisions of the child protection act. It makes me feel very pleased that we have a senior judge—a District Court judge—in there, independent of other responsibilities and strong enough to be clear about providing that information.

Remember, the Youth Court is a court of record. It stands on its own. Most of its hearings and determinations are conducted outside of the public eye and scrutiny. It gives me significant confidence to know that we have someone in there running the show who is prepared to make it absolutely clear that he will give advice without fear or favour, and he will provide that information. In this instance, he has confirmed to us, on the information that had been presented by the department, that an order was made on every single application. In the face of having a tribunal circumstance where there is some secrecy in the hearings, that maintains the confidence I have, and other members of the public should have, in those who work in the Youth Court.

There will be some other matters that I will raise in committee, but I think that otherwise concludes my contribution.

Mr DULUK (Davenport) (16:19): I also rise to speak to the bill, and thank the deputy leader for her contribution. I will not ever propose to be as detailed as she has been.

The Hon. J.R. Rau: Oh, come on.

Mr DULUK: It is the joys of not being a lawyer. Deputy Speaker, the ultimate objective of the Statutes Amendment (Youth Court) Bill 2015, from the way it has been presented, is unfortunately to save money. As Professor Rick Sarre, from the University of South Australia and Adelaide University Football Club fame, has observed—

Members interjecting:

The DEPUTY SPEAKER: Order!

Mr DULUK: —it appears the government is changing the court for cost rather than philosophical reasons. This is a great shame for this, and I suppose this is on the back of a government that has sold the forests, increased the emergency services levy, closed down police stations, and the next step is the Youth Court, which is very disappointing. Those funds that will be saved will principally come from allowing magistrates rather than judges to hear Youth Court matters and allowing magistrates to hear and determine major indictable trials within that court.

A youth court or children's court has been a feature of the South Australian justice system since the Kingston government way back in 1895 when they introduced the State Children Act. As a community, we have a youth court so as to do everything possible to prevent young offenders from becoming adult offenders. Accordingly, the present Youth Court has specialist judicial officers, family conferencing and a ban on media reporting. These measures, together with a special culture within that Youth Court, assist young offenders in their rehabilitation.

By and large, the current specialised system works. Very few young offenders become repeat offenders in their adult life. Young offenders often only offend once, face the court and its processes, and thereafter become productive young people in society, which is absolutely what we want, and full credit to the Youth Court in the way it handles these issues. It is wrong to think of the Youth Court as just another court.

Judge Peggy Fulton Hora, Adelaide's Thinker in Residence, emphasised in 2010 that the Youth Court judges must be experienced. The judges and lawyers of the Youth Court are, as I have said, specialised. Importantly, they are also experienced when it comes to developmental issues facing young people. The sentiment of Judge Peggy Fulton Hora and that of myself and those on this side of the house is a sentiment shared by the Law Society in its submission to the Attorney. Self-evidently, young people are our future. They require the most experienced judges and the most professional youth justice system. South Australia should always be aiming to meet or exceed best practice.

For reasons that I have already outlined and the reasons outlined by the shadow attorney-general, and no doubt by my colleague the member for Hartley to follow, this bill puts South Australia's youth justice system at risk for little financial benefit. Of course, the problems we face in the Youth Court are probably symptomatic of the problems that we face throughout our whole judicial system currently under this government and the general failure to resource our courts. The justice system is not a luxury. Instead, it is one of and perhaps the most important organ of our just society.

This government for many years has failed to provide for the courts and, amongst many of their failures, South Australian courts do not have a comprehensive e-filing system. This increases the cost of dealing with the courts, particularly for litigants. The IT system overall is no longer fit for purpose. His Honour Chief Justice Kourakis has remarked in this respect in regard to the IT system failures. The Supreme Court itself is a complex and ageing relic. When former chief justice Doyle broke his leg, he found his own building did not have disabled access. The building has been subject to rising damp, plaster sometimes falls from the ceiling, and the Premier himself has remarked, 'Those who use the courts have had to put up with substandard facilities for too long.'

There are insufficient judicial officers to process the workload of criminal cases in our state. As David Edwardson QC observed late last year, 'Our courts are the worst in the country, we are completely under-resourced and there are not enough courtrooms or judges…it's that simple.' The failure to resource the courts has real consequences. It has been reported that inmates yet to be tried are being held at G division at Yatala. That division comprises punishment cells. It is only designed for short-term occupation. David Edwardson QC also remarked:

It's all very well to have a 'pack, rack and stack' mentality but you have to be able to process all these prisoners. To do that, you need adequate prisons, resourced courts and the right number of judges.

The Chief Justice sat recently as a magistrate, and I commend him for taking an active interest in front-line justice. He has made measured and thoughtful comments about the state of the courts and the need for more resources. I urge the Attorney to listen to the Chief Justice, the Law Society and to those on this side of the house, and to do the right thing by the Youth Court and not slash its capacity as a court for the sake of saving money.

Mr TARZIA (Hartley) (16:25): There is nothing more important than ensuring that our youth have the best opportunities they can in life. Sometimes when things go wrong it is extremely important that, as members of parliament, we give them all the support we can to ensure that systems and processes are in place to make sure that they get the best step-up they can in life. I think it was Aristotle who wrote, 'Good habits formed at youth make all the difference.'

It is definitely accepted that the developmental, emotional, psychological and related issues are certainly very sensitive around that youthful age, and sometimes when things go wrong it is really important that we have allocated and that we continue to allocate the resources needed for youth who are sometimes in trouble to be rehabilitated to ensure that they become good moral citizens, law-abiding citizens and productive citizens.

So, what we need in this area are more resources allocated to this court, not fewer. The Youth Court is a specialist court and, like any specialist court or tribunal, it is that for a reason—because youths are dealt with in a different manner from adults. To bundle it all up into the same area is completely ridiculous.

We should come back to the central ethos when determining what to do in this manner: what is best for the youth? I put to the Attorney, what is best for the youth is a specialist court and more resources not fewer. The government wants to talk about efficiency and what have you, and it is sad to see that it has made a decision in the past to cut funds to the Courts Administration Authority, which has led to the closure of many courts, partial courts and also full courts.

I do not have to harp on about the savage cuts in the north-east that are going to lead to the closure of the Holden Hill Magistrates Court. Unfortunately, the Youth Court seems to be on the chopping board. It presents a strong message: maybe no court is safe. Who knows? It is very disappointing to see that, whilst I applaud that they are committed or they say they are committed to a fairer system, a more effective system, a more efficient system and a more accessible system, it goes without saying that when you are shutting courts you are definitely not giving accessibility, that is for sure.

The Youth Court was established in 1993 by the Youth Court Act and it has jurisdiction, as we have heard, in relation to criminal matters involving young people. This bill focuses on the composition of the Youth Court and removes any requirement for the judge of the Youth Court to be predominantly occupied in the court. I, too, would like to thank those who drafted the bill and also those who have provided feedback on it.

I think the Law Society hit the nail on the head, and I congratulate Rocco Perrotta and his team, when they say:

The Society is not opposed in principle to the removal of full-time judges from the Youth Court provided that the higher court work hitherto reserved for the judge remains with a judge with experience in the Youth Court.

They base that on two principles:

(1) Dealing with youth is an area of speciality…

(2) All major indictable matters should be dealt with by a judge, as they currently are in both the youth and adult jurisdictions.

This is a specialist area of the law, and I think we are definitely taking a step in the wrong direction if we move in the manner in which the Attorney would like.

I appreciate that the government has provided a briefing, and there has been consultation with the Chief Justice, the Chief Judge, the Chief Magistrate, the Law Society, the Bar Association and the ALRM. We have heard that justice Nyland, former Supreme Court judge and current head of the royal commission into child protection systems, recommended that the Youth Court still be led by a District Court judge, and the member for Bragg has extensively listed her past experience in the area, and I think we should certainly give much weight to Margaret Nyland's suggestions.

There is no doubt that retired Judge Peggy Fulton Hora in 2010 also suggested that the most experienced of judges should deal with youth matters. Then we have also heard comments from the member before me that David Edwardson QC also raised concerns similar to those of Ms Nyland; that is, the court should be led by a District Court judge. He actually suggests removing the option in the bill allowing for a Chief Magistrate to be appointed, even though he has the same powers as a District Court judge. Further, he points out that the Chief Magistrate currently declines to hear major indictable offences, such as murder, for adults.

I will support the bill with or without amendment. However, I humbly ask the Attorney to give great credence and thought to what he is doing because it can, potentially, be a dangerous step. Where does it stop? As I said, it comes back to the youth. We have a civil duty here to ensure that when these citizens in our community—our future leaders and our future—run into problems with the law they are addressed with the TLC that they deserve. What we need is more resources in this area, not fewer. With those comments, I commend the bill to the house.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (16:32): I thank all of those who have made a contribution today. I think it is probably nice to start with the good bits. Madam Deputy Speaker, do you think that is fair, to start with the good things? I am going to have a crack at that, anyway. I think it would be nice for all of us to think that we agreed that the welfare of children is a significant priority for all of us and that anything we can do to improve that is a good thing, and that has certainly been a matter of great concern to me.

If we look at the present structure of the Youth Court, the Youth Court used to be an inverted triangle. Madam Deputy Speaker, you are probably wondering: what on earth has that got to do with triangles? It used to be an inverted triangle because it used to have a couple of District Court judges at the top and a single magistrate at the bottom. It was a funny structure. Most courts go the other way: they are like a conventional pyramid that has the big flat bit at the bottom and the little pointy bit at the top, but this one was not like the conventional pyramid. It was like a pyramid in topsy-turvy land, with all the weight at the top and a little point at the bottom, being a magistrate. That sort of defies common sense.

Then what happened was that one of the District Court judges, through illness, was unable to continue in the role. That was regrettable: he had provided excellent service to the court. We found ourselves down to one District Court judge. I think at that stage another magistrate came in to help out, if I remember correctly. At that stage, we at the very least went from the inverted pyramid to either the straight line or the conventional pyramid. The world did not end, clocks did not stop, everything seemed to be okay and it then occurred to me, amongst other things—

Ms Chapman: Another light bulb moment.

The Hon. J.R. RAU: Perhaps, one might say that. As a matter of interest, it occurred to me in conversations with a great many people, some of whom were members of the judiciary, that given the fact that most of the volume of the work in this jurisdiction already is being discharged by magistrates and given the fact that—to pick up the member for Hartley's reference to TLC, I would add to the comment of TLC 'practical on the ground experience of the rough side of life'—it would be fair to say magistrates get to deal with that a lot more on a day-to-day basis than District Court judges do in the sense that magistrates are seeing 50,000-odd people collectively a year through their court. They get to see all of the minor matters but they also get to see the major matters first before they are flicked up somewhere else. They have a pretty good idea of what is going on out there and they have a pretty good feel for what is going on on the ground.

The idea was let's have a specialist team within the magistracy who can be the people who deal with these young people. There were two propositions advanced in the consultation that I had about the initial draft, and I make the point that there was an initial draft of this bill which was the one that former justice Nyland was having regard to in her remarks in her correspondence, not the bill that is in front of the parliament—and I will explain a little further about that in a minute.

There were two things that came back in terms of matters of concern for those people who were bringing a genuinely constructive mind to this issue. The first one was this. We do not want, whoever it is who is going to be hearing these cases, circulating in and out of these cases as if you are standing at Woolworths and just taking a chit out of the thing and you are No. 72. The first case you have is a Youth Court case, the next one is an indictment on a murder case, the next one is this, the next one is that.

They did not want this revolving door of people dealing with youth matters. They wanted a dedicated cohort of magistrates who are going to become select specialist magistrates and, although that was always my intention, I did return to the draft bill that I was working with with a view to making sure that it was crystal clear that that was exactly what that bill was saying, that there was going to be a hiving off, if you like, of particular magistrates from the broader body of the magistracy. They would be popped into this youth stream, if you want, of the magistracy. They would still be magistrates for all purposes but their normal day's work would be to go to the Magistrates Court and deal with Youth Court matters day in, day out, year in, year out. We have dealt with that matter.

The second matter was some people, many of whom have been referred to in dispatches today—and Mr Edwardson, by the way, did not actually get in touch with me about this matter as best I can recall, although the fact that he has a view on this which does not coincide with mine does not hit me as if it is a bolt of lightning. Mr Edwardson routinely goes into the media expressing views contrary to mine and the government's and has done for some considerable period of time.

He is entitled to do that, of course, but I believe it is possible that one can set one's compass in respect of Mr Edwardson on the basis of asking what does the government say and then, if one moved through 180º, we would get approximately something approaching his point of view on a particular topic. He is entitled to have a different view to me and that is his right and good on him. I make only the point that he is nothing if not regular in being different in his point of view. One could say similar things about the Law Society, although I must say there have been tiny flickers of sunshine coming from that direction in the last few months.

An early version of the bill was also provided, as the member for Bragg has indicated, to Commissioner Nyland because I thought that, given the fact that she is working in this space, it would be courteous of me to give her a look at the bill. In fact, my recollection is that I went and met with her and had a bit of a chat about this. I cannot remember whether or not the Minister for Education came with me on that occasion, but there was a general discussion, the particulars of which I now do not recall about this proposal and other things. At the end of that I thought to myself that here is the second stream of concern that is coming out of this, and that is that maybe there should be a District Court judge at the head of this because there is some degree of perceived aplomb or panache or—I am trying to find another French word—elan or—

The Hon. S.E. Close: Je ne sais quoi.

The Hon. J.R. RAU: —je ne sais quoi or something attached to having a District Court judge there, never mind the fact that the Chief Magistrate is, in fact, by force of statute, a District Court judge. Yes, I know that is a revelation, but it is true.

In response to that concern and in order to underscore the fact that we were hoping that we were not going to be in any way dismissive of the concerns about this being a jurisdiction that was to be taken seriously, I added, in order to accommodate those concerns, the proposition that said, 'or a District Court judge'. That was put there to accommodate those concerns, but can I say that I have enormous confidence in the capacity of the chief magistrate (who is incidentally a District Court judge and paid exactly the same so there is no saving involved at all) and I have no doubt whatsoever that she could discharge this function very well.

I also believe that if you look at all of the changes collectively it is obvious, at least to me, that the role of the presiding member of this court is by no means necessarily a full-time role. That is not to say they will not have things to do—they will—but the idea that they would necessarily be occupied day in, day out discharging functions under this legislation does not hold up. I base that on the changes in this legislation and on current experience, having regard to the fact of the change in personnel in the court as it has actually tumbled out.

The other point is that there is something to be said for a court structure, such as this one, to be contained within a particular jurisdiction. It is not without its complexity that a 'court' which we call the Youth Court is, in fact, presided over by a judge who is completely in a different court altogether. All around Australia it is not uncommon, for example, that the head of a county court in Victoria has the standing of and is technically a Supreme Court judge or that in New South Wales a county court judge—whatever the terminology is in those jurisdictions—is notionally a Supreme Court judge, but that does not mean that they sit in the Supreme Court all of the time.

It means they are the head of that court, they work in that court all of the time, they have the seniority equivalent to a Supreme Court judge in that example, but they are not an active participant in the other court and thereby, in their headspace, sitting in that court. In the same way the head of the District Court here has been made effectively, to all intents and purposes, a member of the Supreme Court, but he does not sit in the Supreme Court. His business and his time are fully occupied in the District Court.

The point I am trying to make is that there are inherent problems with having a head of jurisdiction who is not a part of the jurisdiction. I am not saying they are impossible to be overcome in any circumstance. I am not saying a particularly tactile and gifted District Court judge could not adequately negotiate their way through that, but I am saying it is a complexity that needs to be borne in mind. The other point that I would ask people to bear in mind is this: where does this place the Chief Judge of the District Court in managing his or her judges when one of them is a judge of another court?

Ms Chapman: They've done pretty well for the last 25 years.

The Hon. J.R. RAU: I am just pointing out some of the interesting little nuances. If we want to look around the country at what other jurisdictions do—and I am focusing here in particular on child protection—the ACT uses a magistrate to do this work; New South Wales has a judge and a magistrate, which is, incidentally, what I am proposing; Northern Territory has a magistrate; Queensland has a judge and a magistrate; Tasmania has a magistrate; Victoria has a judge and a magistrate; and WA has a judge and a magistrate.

What I am saying in this bill is that I am happy enough for the person who is to be the head of this notional court to be a person who ranks in the hierarchy above the magistracy in its normal form; I am fine with that. I think there would be inherent problems in saying to one magistrate over another, 'Look, you're more senior than your colleagues.' I think that would cause, potentially, some difficulty in terms of people accepting the hierarchy within the court. I am confident that having the Chief Magistrate, who is a District Court judge, or, if it was deemed more appropriate for some reason or another, a District Court judge—it does not preclude a District Court judge; it just says there is an option—is the most flexible model, and it would be probably the most effective model.

The point is this: the concerns that the opposition are voicing and attempting to deal with in their draft amendments, which I have just seen, would remove the option altogether of the Chief Magistrate performing that role. The bill as it presently stands says one or the other can do it. Let us wait to see who is available, who is the best person on the day, and let us work it out from that perspective. Quite frankly, I would prefer to keep the flexibility in the legislation. That would mean that we have, either way, a person who is, by reason of their rank and pay and entitlements, a District Court judge at the apex of the pyramid; but I want to be able to retain the flexibility of having that person also be the person who is responsible for the overall administration of the Magistrates Court. I think that seems to be our real point of difference.

Looking at the amendments circulated by the member for Bragg, they do not appear to address any other matters; so that is really where we are. I think this is a more flexible model. In the case of us having, as we do, an excellent Chief Magistrate, who would be more than capable of managing this in a very compassionate and comprehensive way, particularly given that most of the work would be done by magistrates, and the Chief Magistrate is their immediate superior, I think that to have those two alternatives available inside the legislation is entirely appropriate. I also gather from what has been said, or rather what has not been said and what is not contained in the circulated amendments, that the balance of the provisions in here are broadly accepted. If that is the case, that is good.

I have to say again that I have taken into account the views of former justice Nyland in formulating the current framing of the legislation. Just to round off again: the two points that were made to me in feedback—there were lots of little points, but the two themes that came back—were the status of the head of the jurisdiction, which I think I have addressed comprehensively, and, secondly, the notion that the members of the court should not be circulating in and out, in and out, and getting no degree of expertise and skill base; they should be dedicated people who stay in there. I agree with that, and that is what we have tried to do in the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: Attorney, when you sent out the drafts of this bill for consideration, I think you said you sent an early draft to Commissioner Nyland. Did you send her a subsequent draft?

The Hon. J.R. RAU: I am not sure. As I said on a couple of occasions, I recall having a general chat to the commissioner and, in the course of that chat, I have recollections about canvassing this matter. My belief is that I said to her at the time, 'I have seen your stuff and I'm making amendments.' I think I told her what I was intending to do, but whether I sent her a draft of this before as well as that, without checking I cannot say. I do not know. I am pretty positive I conveyed to her what I intended to do about the feedback I had received from her.

Ms CHAPMAN: In any event, she maintained the view that she considered the head of the court should be a judge of the District Court?

The Hon. J.R. RAU: I do not know whether that was the case at all. All I am saying to you is that I circulated an early draft which did not mention 'or a judge of the District Court'. She provided me with a comment on it, which is contained in the letter that the member for Bragg has referred to in the house today. Some thinking about the matter took place; there was an amendment made to the draft which added in the bit 'or District Court judge, as the case might be'. My recollection is I then had a chat to her. I do not recall there being any further conversation entered into about that matter.

Ms CHAPMAN: Prior to introducing the bill and, in fact, prior to going to cabinet, I assume—which is required to introduce the bill—had you consulted with the Minister for Education and Child Development, who covers child protection matters, and/or the Minister for Youth, who covers our facilities for juvenile justice about the proposed change of composition of the Youth Court?

The Hon. J.R. RAU: I will do my best to answer that question. I have to say that one of the delights I have had in the last few months has been almost daily interaction with my esteemed colleague the Minister for Education; we talk a great deal. Each one of those is a highlight, but to pick one diamond out of a vault full of diamonds is difficult.

Mr Gardner: Actually, it is pretty easy. If you have a vault full of diamonds, to pick one diamond you just reach in.

The Hon. J.R. RAU: Yes, the member for Morialta makes a good point—it would be easy—but to pick the right diamond; to find the diamond in the haystack, that is the thing. I speak frequently to the Minister for Education, and it is always a privilege and a delight. But in relation to this particular matter, all I can say with absolute certainty is this: the cabinet process requires us to go through a cabinet submission, and there is a 10-day rule. Part of that process involves associated agencies, particularly, I would imagine, the agencies for the Minister for Education seeing that, and coordinating comments would appear on the cabinet submission from them. I hope they were positive. I cannot recall.

Ms Chapman interjecting:

The Hon. J.R. RAU: It is confidential anyway, exactly. I can assure the member for Bragg that there is a process whereby for these things to go through it is necessary for comment to be given. Without recalling an occasion, I am sure the Minister for Education and I have talked about this. On what day and whatever, I am not able to help the member with, but there is a process for cabinet which would have involved all government agencies being given an opportunity to comment.

Ms CHAPMAN: So, the Minister for Youth, I take it, is in the same category; that is, that her department would also have a chance to have a look at it and provide any comment. If there had been any adverse comment, or comment which would be there to suggest that you have some change in it, you would have acted on it, even if it was to reject it.

The Hon. J.R. RAU: The process would be basically this: the document would come to cabinet. The document would have attached to it comments from agencies. More often than not, agencies say, 'Support,' or, 'No opinion,' or whatever the case might be. I have no recollection and could not say anyway what the agency comments were with respect to this one, but in general terms I can say this: it is not uncommon for a matter to come before cabinet where one agency or another has some concern about the matter, and that is normally resolved by way of conversation around the cabinet table. I know this is talking out of school here, but Treasury, for example, often has a view about things.

The Hon. P. Caica interjecting:

The Hon. J.R. RAU: The member for Colton would know that. They quite often have things to say and, unfortunately, they are usually pretty effective, are they not?

The Hon. P. Caica interjecting:

The Hon. J.R. RAU: Yes; but it is common for these things to come up and common for them to be discussed. I honestly do not remember but even if I did I do not think I could go into the particular of this submission.

Ms CHAPMAN: I am not entirely sure, even with the response, Attorney, as to where this idea came from. There is no mention of it in your second reading, but in response I think you suggested that there had been some conversation with judges. Are you able to identify anyone who brought this proposal to you?

The Hon. J.R. RAU: Not with any absolute confidence, no. I just have this—

Ms Chapman: Vibe.

The Hon. J.R. RAU: It is more than a vibe, but I have this general recollection that in the course of some interactions I had with members of the judiciary, amongst probably a great many other things that were rolled out, this proposition, in one form or another, was put forward and, like most things they raise with me one way or another, I give some thought to it. I tried to be more particular about that, but I could not say exactly who said what on what day. My recollection is that, amongst a great many things that were raised and are raised frequently with the courts, one of the things that was floated was whether this model might work.

Ms CHAPMAN: What has been advised to us is that the saving in the first year is about $200,000 in this structure, compared to the existing structure. Do I understand that to be the saving on the second judge's salary? Where is the saving? Perhaps you could identify that.

The Hon. J.R. RAU: Over and above what we have now, I do not think there is any saving. I am advised as follows: currently, the Youth Court operates with a senior judge, an auxiliary judge, and magistrates. Auxiliary, by the way, is an as-required proposition. My understanding, from what I have been advised, is this: if we were assuming that the current arrangements were operating with an auxiliary as a permanent fixture (which I do not necessarily think we can assume), the difference between that and this model would be the difference between the cost of the auxiliary and a magistrate, which I believe would be something in the order of $200,000. But that saving does not come from the head of the jurisdiction because, by either methodology of calculation, the head of the jurisdiction is, and is paid as, a District Court judge. So, there would be no difference at all from that point of view.

Ms CHAPMAN: If you had a District Court judge, and the District Court judge was actually over in the District Court but had a role as head, the same as the Chief Magistrate, they would not actually be over in the Youth Court; they would be in their own respective courts. So, there would be a role played, obviously, in administration, but they would not actually be sitting and hearing cases in the Youth Court, would they? Are you suggesting that, if Elizabeth Bolton is going to be the head of this court, she is somehow going to be sitting over in the Youth Court hearing cases in addition to her current job, which is pretty full, I would suggest?

The Hon. J.R. RAU: My conception is that the head of the court would primarily have an administrative or supervisory function. It might happen, but it would be infrequent, that they would be called upon to exercise their jurisdiction or actively engage in cases. They would not be at the coalface, so to speak, very much.

If the person running the thing were a District Court judge—and I mean a District Court judge alone—my expectation is that they would be significantly available to the senior judge of the District Court, although I can foresee potential complexities with the senior judge listing that judge when the senior judge does not know what that judge is doing. We might wind up with—the Chief Judge, I beg your pardon. I apologise to Chief Judge Muecke.

It might create practical difficulties for the Chief Judge, in that for him to list matters before the District Court judges without first having particular regard to the rosters that may or not may not be determined by that particular District Court judge, having regard to the fact that they were potentially occasionally rostering themselves to do things in the Youth Court, it might actually make Judge Muecke's job reasonably complicated in respect of that individual. That would not be the case if the individual were the Chief Magistrate because there would not be that dichotomy of lists.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–1]—

Page 4, lines 4 to 7 (inclusive) [clause 4, inserted section 10(2)]—Delete subsection (2) and substitute:

(2) The Judge of the Court is a Judge of the District Court designated by proclamation as the Judge of the Court.

As foreshadowed in the debate, this amendment is to substitute the head of the court:

The Judge of the Court is a Judge of the District Court designated by proclamation as the Judge of the Court—

as distinct from the current provision, which provides for a District Court judge or the Chief Magistrate. I also indicate that the further amendments as published in my name are consequential to that being successful. For example, provision for a change to deal with the training review panel, if the government's bill is successful, would need to accommodate the words 'the Chief Magistrate'.

I have outlined the opposition's position on this at length. It is of great concern to us that, in the face of very significant and experienced people in this state saying that this would not be acceptable and, furthermore, the Attorney's own statements here today confirming what we always expected—that is, whoever is going to be in charge of this court would be doing it by remote—there may be some other administrative staff in their offices not co-located in the court who would be setting out the administration of this court and a pool of magistrates dedicated by the proclamation process would be sent over to sit in the Youth Court. Of course, that could change.

The government could decide after a while, after running the court by satellite, that they would close the court, move it over and just put it into one of the back rooms of the Magistrates Court or District Court, depending on whoever at any one time the Attorney might decide is the best leader of the court. The opposition finds that whole situation wholly unsubstantiated and quite offensive to the importance of the work of this court.

I confirm again in the course of this contribution that this in no way is intended to reflect upon any District Court judge or the current District Court judge who is the Senior Judge of the Youth Court, whose term expires, I think, in the next 18 months or so, or indeed on the Chief Magistrate, Ms Bolton, for whom I have very high regard and who is extremely competent in the work she undertakes. But the fact that the Attorney confirms that this will just be a tacked-on addition to her already fulsome areas of responsibility I just find completely unconscionable, especially in light of the public concern, indeed outrage, at the conduct of other agencies of the government which need to have the supervision of senior people in the judiciary.

Similarly, not to have a dedicated District Court judge—that is, if that were to change as well and it were to be someone just sitting in the District Court somewhere and again operating the administration by remote control—that model, if that is even considered by the Attorney, is not workable. This court has a senior judge at its head, a District Court judge who is commissioned specifically to do that job, and they are doing that well. They need it, our children deserve it, and it is utterly unconscionable that the government should act to diminish that court in the manner that is proposed.

The Hon. J.R. RAU: Just very briefly, the conversations that I have had and discussions that I have had with the courts, I can say that, to the best of my recollection, the Chief Magistrate has not said anything to me along the lines of, 'I can't manage this. Don't do this,' and inasmuch as it might be necessary, there is capacity within the bill for the head judge, whether it be the Chief Magistrate or somebody else, to delegate some functions elsewhere if that was of any assistance, but I have not been getting push back from the Chief Magistrate about that matter.

The second thing is—and I can be positive about this—that the Chief Judge of the District Court has certainly not been urging me to make sure that the Senior Judge of the Youth Court is a District Court judge. So I am reasonably confident that in fact if the circumstances in this place were that an amendment saying that it could only be a District Court judge were to be successful, I do not believe that that would be well received by the District Court because of the complexities, amongst other things, that that might cause in terms of management of that court and listing, if it were said that it could only be that judge.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, but, in the end, I think it is better for us to preserve this degree of flexibility. I think the advantage of the flexibility is that, at any point in time when there is a retirement or whatever of the existing leader of this court, the attorney of the day should have the opportunity of having a conversation with whoever the Chief Magistrate is and whoever the Chief Judge of the District Court is, and say, 'Look, folks, we've got this issue. What is the best solution to fill this position with the best possible person, given the particular activity that goes on in here?'

I would like the attorney of the day and the chief of both the Magistrates Court and the District Court of the day to have as much flexibility as possible in ascertaining what the correct answer to that question is. For that reason and for that reason alone, I oppose the amendment. I make the point that I have put in here myself the option of a District Court judge and I am not saying it should never happen, but I am saying that, at particular points in time when these questions come to be answered, it would be useful from the point of view of everybody that there was the maximum flexibility where the parties affected—the Magistrates Court, the District Court and the attorney of the day—could sit down and talk about this and try to work out the most practical solution at that point in time and for the term of the office.

The committee divided on the amendment:

Ayes 17

Noes 21

Majority 4

AYES
Bell, T.S. Chapman, V.A. (teller) Duluk, S.
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. van Holst Pellekaan, D.C.
Whetstone, T.J. Williams, M.R.
NOES
Atkinson, M.J. Bettison, Z.L. Bignell, L.W.K.
Brock, G.G. Caica, P. Close, S.E.
Cook, N. Digance, A.F.C. Gee, J.P.
Hamilton-Smith, M.L.J. Hildyard, K. Hughes, E.J.
Key, S.W. Odenwalder, L.K. Piccolo, A.
Picton, C.J. Rankine, J.M. Rau, J.R. (teller)
Snelling, J.J. Vlahos, L.A. Wortley, D.
PAIRS
Gardner, J.A.W. Weatherill, J.W. Pengilly, M.R.
Kenyon, T.R. Treloar, P.A. Koutsantonis, A.
Wingard, C. Mullighan, S.C.

Amendment thus negatived.

Ms CHAPMAN: On clause 4 if I may ask the Attorney, how long has the current Senior Judge of the Youth Court got to go to conclude his 10 years?

The Hon. J.R. RAU: I am advised 30 June next.

Ms CHAPMAN: Is it the intention, once we have passed this bill, that the Attorney will make a decision as to interrupting that and appointing a different District Court person or the Chief Magistrate?

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: Which is it?

The Hon. J.R. RAU: My point is that Judge McEwen is a judge of the District Court and, assuming this passes as I envisage, I would have the conversation to try to ascertain whether it would be the Chief Magistrate, Judge McEwen continuing on or another person.

Ms CHAPMAN: At the moment, obviously we have Judge McEwen and we have, I think you called it an auxiliary judge, Mr Alan Moss who comes in from time to time as required for reasons we have both discussed in this debate. Why would it be necessary to introduce the new regime prior to the conclusion of the contractual term? Is there any urgency for that?

The Hon. J.R. RAU: I just have not really turned my mind to that. My belief is that, as a matter of law, once this passes it would be necessary for me to make the necessary arrangements with the Governor for the declaration or proclaiming of particular individuals because this would then be the law. It would be a matter to be ascertained at that time who the best placed people were to do the job, so I have not really resolved that matter in my own mind other than to want to have, as I explained before, for myself at that point in time the broadest possible range of options available. I would hope any future attorney in my position, whenever this position came up, would be similarly given a range of options.

Ms CHAPMAN: So, if you did decide that you want to go to the Chief Magistrate model/option and Mr McEwen would then be sent back to the District Court, he could continue his duties as a District Court judge. In those circumstances, would there be any extra staff allocated to the office of the Chief Magistrate to undertake the role as the administrator of the Youth Court?

The Hon. J.R. RAU: The short answer is I do not know the answer to that question, but the administration of the Youth Court would remain intact and whatever they required would be there to be servicing whoever it was who was running them. My present feeling on the matter would be that there would probably be no need for additional particular staff if it were to be the chief magistrate, because whoever it was who became the head of this jurisdiction would be able to basically utilise the existing administrative capabilities of the court and administer it as it presently is being administered. My expectation is that there would not be, but I guess we just have to see how that panned out.

Ms CHAPMAN: I think the current two magistrates in the Youth Court, Mr Broderick and Ms Makiv, undertake the work as we have previously discussed, but has there recently been another magistrate proclaimed to take on the role in the Youth Court?

The Hon. J.R. RAU: I am not sure of the answer to that question. We will check. I know that there have recently been some magistrates appointed. I am advised that all magistrates are already ancillary members of the Youth Court, so I assume that is then an administrative matter for the head of the court or the Chief Magistrate to work out who are going to be the people in there.

Ms CHAPMAN: In the discussions that you had with the Chief Magistrate, to the effect that she had not raised any objection to undertaking this role, had she indicated any desire to have extra resources to undertake that role?

The Hon. J.R. RAU: Not to the best of my recollection, no.

Clause passed.

Remaining clauses (5 to 27) and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:25): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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