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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2015-05-12 Daily Xml
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Statutes Amendment (Youth Court) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 26 March 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:38): I rise to speak on the Statutes Amendment (Youth Court) Bill 2015. I indicate that I will be representing the opposition's position in my contribution. There may well be other speakers on our side who have taken a great interest in both child protection and juvenile justice matters, which is the precinct and purview of the Youth Court in South Australia.

The bill was introduced to parliament on 26 March this year by the Attorney-General and, in short, it amends the Youth Court Act 1993 and the Young Offenders Act 1993, together with some other consequential amendments. The act currently provides that the Youth Court judiciary is comprised of a District Court judge, as the Senior Judge, with youth-trained magistrates operating under contract for various periods of time. The bill provides that the principal judicial officer will be a District Court judge or the Chief Magistrate in South Australia and, essentially, the purpose of the bill, we would suggest, is to save money, as the salary of magistrates is less than that of a judge.

It is concerning to note that the savings disclosed for the first year of operation will be only about $200,000 but other information has not been provided by the Attorney's office as to the savings thereafter. However, in addition to being provided a briefing on this bill, I should indicate that on 1 May, that is, last Friday, I received a letter from the Attorney enclosing some information in respect of this bill, including a determination by the Remuneration Tribunal in respect of the salaries and entitlements of our judicial officers in the state and, also, a letter from the Hon. Margaret Nyland AM, who is currently the commissioner of the child protection system's royal commission, dated 26 February 2015, which I will also be referring to in the contribution I propose to make.

The situation that led to this bill being presented to the parliament was, in a way, a bit out of the blue, given that the government after last year's election indicated that it was going to be looking at a number of areas of reform, including transforming the criminal justice system which has periodic publications of reviews it is undertaking—mostly glossy pictures and scant information—generally highlighting some of the areas of reform that the Attorney is looking at, together with press releases from time to time indicating certain action that he is going to take.

This proposal, which is to change those judicial officers who comprise who will be in charge of the Youth Court, did not show up as any area of reform that was either being sought by members of the judiciary or other relevant agencies in this area—those representing children in the Youth Court, those working in the Youth Court or, of course, those in our academic world who take an interest in it.

It is fair to say that the Youth Court has a considerable history, to the extent that we have a separate youth court to recognise the special nature of dealing with the juveniles in our community. It works in the juvenile justice arena on the principle that we should deal with those who commit offences under the age of 18 years differently from adults because we recognise that young people make mistakes, they do some silly things and they ought to be given a second go. So we have a juvenile justice approach which is consistent with having a separate court from the adult courts, either at the summary level in our magistracy, the medium level area of crime and the like in our District Court and, of course, the most serious in the Supreme Court. The idea of treating juveniles differently and having a right to expunge their bad behaviour as a child so that they have an opportunity to have a clean slate when they become an adult underpins the fundamental principle of the way we treat children differently.

One of the other aspects that is important and consistent with this principle is that we do not hear children's cases in the public arena, and that is also an exception to the principle of having transparency in our courts. The public have confidence in our court system. They need to be able to have access, to see how justice is delivered and to have confidence that it is operating as it should. We have an exception to that rule in the Youth Court, where, largely, the hearings that are undertaken, whether it is the juvenile justice area or in the child protection area, are under the envelope of some secrecy.

We do not let the public in to see what is happening because we have made a decision as a legislature, consistent with the continuing contemporary view, that children should be to some degree protected against the glare of public and media gaze. They are entitled to have some privacy in this area and to have an opportunity, consistent with this idea, to have a clean slate when they turn 18, when they are expected to act responsibly as an adult and do not get as many second chances. Again, all this is consistent with having a separate court from our adult courts, which divide up into three categories, the three different types of courts, the way in which people are dealt with in a criminal law capacity.

In the second area of the Youth Court, which is in respect of child protection, never has this been more obvious than with what we have been dealing with in the last month, with the publication of Coroner Mark Johns' report into the agencies responsible for child protection, in the Chloe Valentine case and, in particular, since the Coroner's report in early April. Much focus and attention are currently, as there needs to be, on why our agencies and, I suggest, our government are failing our children in South Australia.

We have a whole raft of child protection law, which is largely administered through the Youth Court. It is a very important area of the law. If our children are the most precious things we have in our community, they deserve to have a court structure which is going to administer this area of child protection, in addition to juvenile justice, and it needs to be at a high level.

Our position on this side is that the government's decision not to have two judges in the Youth Court is one that we can live with, but to introduce a bill to say that the head of that Youth Court will be a District Court judge, as it currently is, or a Chief Magistrate and not tell the parliament what his intention is at this point, as to whether he is going to appoint the head of the Youth Court from the ranks of either the District Court or as the Chief Magistrate, is not acceptable to us. It is totally unacceptable to us, and there are a number of people who support our position in this regard.

I think that particularly the Attorney-General has been remiss at best in his responsibility to the parliament and should have disclosed a number of these matters to the parliament, and I will come to them in due course. We do not accept anyone less than a District Court judge being in charge of the Youth Court. What is more, we have a number of people who support us in that regard.

The court is currently comprised of a senior judge who is a District Court judge. The one who is there at the moment is currently under a 10-year contract to be head of the Youth Court. He remains a District Court judge and if, at any time, his contract concluded, then the current law would provide for either an extension of that or another District Court judge coming across (presumably under contract) to continue in that role.

Under that arrangement, a second District Court judge is available; there is room for a second District Court judge. My understanding of the current operation is that, in relation to those positions, Judge Stephen McEwen is the current District Court judge allocated that responsibility in the Youth Court. Although there is a second District Court judge position, in fact, it operates on the basis that a person—such as former judge Alan Moss—comes in from time to time to hear cases on some kind of commission or contract arrangement.

Separate to that, there are at least two magistrates—and possibly a third, because I think one was appointed just recently—who undertake what I think is fair to say a lion's share of the actual cases that come before that court; and I am sure they competently carry that out. Members can view the annual report which is summarised in the reports here to the parliament of the operations of the Youth Court. These judges have a difficult job—unenviable in many ways—but nevertheless, one which I suggest they are undertaking competently. In fact, we have never had one complaint from the Attorney-General to us here in the parliament to suggest that the current structure is, in some way, wanting or deficient in the services that it needs to provide.

What is also concerning is that, in the absence of some party to submit the importance of this new reform, we noted that the government, contemporaneous with the announcement of this new reform and the legislation coming into the parliament, had dome somewhat of a backflip on a cost-saving measure that the Attorney-General otherwise addressed. Members might recall that, in September last year, the government announced that, as a result of decisions that were made by the Chief Justice (as the head of the Courts Administration Authority)—somehow or other this was all his fault—the Port Adelaide and Holden Hill Magistrates Courts would be closed.

Members could well imagine, even if they do not represent those areas, the number of cases that are dealt with in both these courts, both being very busy courts that provide an accessible court facility to large regions of the metropolitan area of Adelaide, and they certainly relieve the other very busy metropolitan court at the magistracy level, namely, the Adelaide Magistrates Court. To expect that, in some way or other, the Adelaide Magistrates Court or some others that are further flung were going to be able to absorb the extra caseload was utterly absurd and brought condemnation and commentary from those who work in this field, including the legal profession on behalf of their clients.

To even contemplate asking defendants or witnesses or victims to come from regional areas to the city of Adelaide, pay the exorbitant parking costs to start with and not have access to a local court system is, I think, disgraceful. Nevertheless, the incapacity for that to be absorbed into the Adelaide Magistrates Court, I am sure, was being echoed by a number of complainants. Next thing we have this bill promoting a cost-saving exercise which, in fact, coincided with the government's announcement that it would save Port Adelaide from the chop and allow it to survive.

We are certainly not supportive of tampering with a court that has a specific purpose, was established for good reason and, in the absence of any complaint, is operating very well, and throwing out a structure, particularly at the highest level, as to who is to run this court and transfer it potentially to the Chief Magistrate who herself has a very important role and could hardly be described as someone sitting around with something needing to be done. She has plenty to do.

Even to ask the Chief Magistrate to be, potentially, in charge of the Youth Court as well again exhibits the government's lack of understanding of what crisis our courts are in at the moment, including our Magistrates Court. It is being asked to undertake more and more enforcement of laws, more and more procedures, more and more cases, and yet now they are saying to the Chief Magistrate, 'Well, look, at the moment, we've got a District Court judge running the Youth Court, but we want you to take that on as well.' That is potentially the position.

Of course, we do not know exactly what the Attorney is going to do because he will not tell us, so it is our view that the District Court judge should continue to be the head of the Youth Court and I foreshadow that there will be amendments, if they are not tabled already, to remove reference to the Chief Magistrate having the role of an optional head of the Youth Court. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 12:58 to 14:00.

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