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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Bills

Supreme Court (Court of Appeal) Amendment Bill

Second Reading

Debate resumed.

Mr TEAGUE (Heysen) (11:17): I rise to commend the bill to the house. It is about the introduction of a new division of the Supreme Court of South Australia to improve consistency and, very importantly, to remove or at least significantly improve the delay in the obtaining of outcomes from that key intermediate appeal court and that important intermediate appeal process.

I have listened carefully to the member for Kaurna as lead speaker for the opposition. I am disappointed to hear that the opposition has formed a view that it will oppose the bill because, as a measure in the interests of improving the judicial process and the justice system, this bill really ought to be uncontroversial. It is certainly uncontroversial so far as the profession is concerned. There is widespread acknowledgement that—

Mr Picton: What does the Supreme Court Chief Justice say?

The SPEAKER: Order!

Mr TEAGUE: —this step demonstrably leads us towards an improvement in consistency of outcome and towards more hasty outcomes and the removal of delay. I will say a little more about that subsequently. In terms of the importance of this level of the court process, the intermediate appellate court, I want to highlight the emphasis that the High Court has repeatedly placed on the importance of consistency of outcome at this level, and that is all the more so since the introduction of special leave being required and the assessment of special leave to appeal to the High Court.

In decisions going back notably to Fox v Percy in 2003, the High Court has had a great deal to say about just how important it is that we have an intermediate appeal court process capable of delivering a high level of consistency and, as I have said now a number of times, prompt outcomes in terms of processing appeal matters. This is not an occasion to deliver a history of appellate process, and I am not going to do so because I do not have time, and it will not be a particularly good one. There are people much better placed than I am to provide a history of process.

But it is, in my view, appropriate to reflect on the fact that appeals are a relatively modern phenomenon overall. They are not part of the process that stems from the common law. They are entirely a creature of statute. The very existence of appeals and their development over the time, let's say particularly from the advent of the judicature acts led by Lord Cairns back in 1873 and 1875, have been a story of progressively reforming the process by which matters before the courts are disposed. So the access to rights of appeal have been aspects of the process that have been expanded and reformed over time, particularly over the course of the last century or somewhat more than that.

Of course, the primary function of our courts is to conduct trials. That is the primary embodiment of the justice system and that is true on both the criminal and the civil side. When we talk about appeals, we are concerned with ensuring that where there is error, either of fact or of law, there is an opportunity to correct that error. Appeals these days are mostly available as a matter of right and, as I have adverted, there remain circumstances in which permission is required in order to appeal, but they remain entirely a creature of statute.

In my view, steps that have been taken to advance access to appeals have been consistently welcome reforms and they have evolved appropriately with a view to delivering merit-based justice in our rule-based system of justice. I note as well that it was not so very long ago that most of the old mechanisms for appeal were not in fact directed to a superior court at all but were often directed either to the original decision-maker or very much to a repeat of the process.

We rather take for granted and readily accept that appeals have become available largely as a matter of right and that they are appeals to different judges to decide the question afresh. Again, these are relatively modern matters. In our South Australian Supreme Court Act, the process by which appeals are heard is the subject of section 50 of the act, and it sets out the framework within which appeals may be directed and from which decisions and in which circumstances. The introduction of a new division within the Supreme Court—the creation of a court of appeal—is a welcome, timely and proper reflection of this jurisdiction's commitment to the central function of appeals.

Without reflecting overly or at any unnecessary length on the member for Kaurna's contribution in the context of questions of resourcing or individual views about the way things might progress, at the core of all this is a question of the centrality and central importance of appeals in our justice system and the need to ensure that we have consistency and the highest level of expertise and diligence directed to the disposition of those appeals.

Perhaps another way to illustrate this, in the context of very recent years, is to point out that, emanating from South Australia over the course of the last 18 months to two years, an unusually high number of appeals from our state's Full Court are being dealt with and overturned by the High Court. Those matters are of course on the public record, and the circumstances and merits of each case are to be determined on their own merits from time to time.

However, the point may be made that an unusually high number of appeals are being granted special leave and being overturned by the High Court. If that is an indication of a need to look closely at how we go about disposing appeals at the intermediate level, it illustrates the point in terms of the situation in South Australia in the immediate short-term past.

In my brief remarks this morning, I want to emphasise the central importance of the appeal process—and what is an uncontroversially positive step, as has been illustrated in jurisdictions throughout the rest of the country and in many states over a long period of time now—having a dedicated division so that we achieve consistency and prompt outcomes. Of course, that means that the members of the court of appeal division are not, as a practical matter, having to deal with the trial work of the court and then having to put that aside in order to sit on the appeal list over a period of time and be distracted by moving from one to the other, with the potential result that that contributes to a less than timely delivery of reasons. Anything we can do to improve the way in which that business can be disposed of, we should be doing. This will be a significant step in that direction.

The bill itself is highly approachable. On its face it does not create any particular complexity of process. Essentially, what it does is establish the Court of Appeal to take the place of the structure within the court as it presently stands. It establishes a Full Court from the general division, as is currently the case, and instead sets it aside as a new division. The Chief Justice will continue to be in charge of the court; there is no change there. There will be a President of the Court of Appeal, who will have administrative responsibility for the new division, but insofar as those who are coming to the court, the profession and so on, there will not be, on the face of the bill, anything unfamiliar about the way in which those appeals will proceed or the structure of appeals from first instance.

I note that, in the course of making the various amendments that it needs to make, the bill has also taken the opportunity to repeal part 3A, which dealt with the Land and Valuation Court, a division of the Supreme Court. It makes a number of unsurprising related amendments, which are set out in schedule 1 to the bill. Those are similarly approachable and uncontroversial and follow the need to substitute, on the whole, references to the 'Full Court' with references to the 'Court of Appeal'.

I also want to take the chance to advert to the fact that there is, in division 6 of schedule 1, an amendment to the Constitution Act 1934. Wherever I see an amendment to the Constitution Act 1934 I prick up my ears and look to see that it is being done for meritorious reasons. It is not always the case that that might be uncontroversially true, but happily in this case clauses 8 and 9 of schedule 1 provide the necessary changes to part 5 so as to reflect the role that will be played by the Court of Appeal in place of the Full Court.

In addressing the central importance of appeals, as I have in these brief remarks, I want to draw the attention of the house to the full landscape that we are addressing and improving by these reforms. This really is about advancing the proper role of the appeal process within the justice system. It is not something that we can all take for granted as being something that has been with us since time immemorial, but rather, as a creature of statute and very much a modern feature of the justice system, it is something that we ought to continue to advance and reform with a view to the delivery of evermore consistent and evermore timely justice. With those brief remarks, I commend the bill to the house and look forward to its hasty passage through this house.

The Hon. S.C. MULLIGHAN (Lee) (11:34): I rise to speak on the Supreme Court (Court of Appeal) Amendment Bill and, further to the member for Kaurna's contribution on this matter, reiterate that the opposition will be opposing this measure, and for one good reason above all others and that is that no case has been established for this bill. There is no rationale, no justification, no data, no information which has been provided either to this place or to the community to justify this measure.

The Deputy Premier's own second reading explanation makes some vague assertions that this will improve the administration of justice, that it will make it more efficient. How? What is the criticism that is implicit in the government's need to reform the Supreme Court to the extent that a new appellate division within it is created? Nothing has yet been furnished. There is no reason to support this and, in the absence of a reason to support it, that leaves us open to speculate as to why it is being pursued by the government.

We have already heard from the member for Kaurna that there are some issues that the court itself would like addressed. There are currently two, or perhaps 1½, vacancies on the court. We have had the retirement of Justice Vanstone, and that place is yet to be filled. We have the situation involving Justice Martin Hinton, who has necessarily stepped back from his responsibilities with the court before he commences his new responsibilities as the Director of Public Prosecutions—I must say, I think a terrific appointment as DPP. I think the government and the Deputy Premier have done well to secure his services in that role.

That does not detract from the fact that there are currently vacancies on the court. We assume, with the Deputy Premier's recent change to this measure, where the appellate division within the court to be created by this bill, the Court of Appeal, requires three justices not two, that there may be a third justice, at least, who needs to be appointed. We do not know whether the Deputy Premier has plans, let alone funding approval, to appoint more than that entire complement of Supreme Court judges in order to ensure that both the general division and the Court of Appeal division are adequately resourced with justices.

I would have thought that this sort of measure would come at the end of some demand for a change to how the Supreme Court administers and hears these matters, but there has been no such cry. The Deputy Premier's own second reading explanation referred to the process that Western Australia went through in establishing a court of appeal within its Supreme Court, that there was a committee established and, presumably from that, the findings of that committee led the government of the day to establish the Court of Appeal. We have had no such inquiry here. There has been no such committee established by the government, at least not publicly. There has certainly been no committee established by the parliament to consider whether there needs to be such a move as this.

There also does not seem to be any justification based on the data, which the Supreme Court itself publishes, on how it manages its case load. You only need to look at the 2018 calendar year report of the judges of the Supreme Court to the Attorney-General for the year ended 31 December 2018 to see that there does not seem to be any glaring need for this matter whatsoever.

The combined criminal lodgements that are pending at year's end have declined from 2016 to 2018 by 583, or 34 per cent, going from 1,714 to 1,131. Admittedly, that also includes the District Court, which of course makes up the vast bulk of the case load, numerically at least. Insofar as the number of lodgements pending at year's end for the Supreme Court criminal non-appeal cases, that has remained relatively static: 82 last year and 84 this year—not a glaring increase in need of such reform.

It is the same with the Court of Criminal Appeal. Pending lodgements at year's end were 90 in 2017 and 90 in 2018. The number of lodgements more than 12 months old but less than 24 months old has only slightly increased, from four to six, and the lodgements more than 24 months old have decreased, from 10 in 2016 to zero in 2018, so it does not seem to be some escalating problem in the management of the case load by the Supreme Court. But we also see that there is a clearance ratio published as part of these statistics.

The Supreme Court criminal clearance ratio for non-appeals sits comfortably above 90 per cent, as it has for each of the last three years. The Court of Criminal Appeal clearance ratio sits comfortably above 90 per cent. When it comes to civil lodgements, again we see the trend declining of those pending at year's end, from 845 in 2016 to 729, and the number of lodgements more than 12 months old but less than 24 months old has declined, from 128 in 2016 to 100 in 2018. The number of lodgements more than 24 months old has remained static at 15 per cent in 2017 and 15 per cent in 2018, only very slightly numerically changing from 107 to 111.

So there does not seem to be any data that supports the need for this. There does not seem to be any community clamour that supports the need for this and, given that we have a reticence from the Deputy Premier to release or at least summarise the advice that she has received from the Chief Justice, that person who is legally entitled to be and is legally responsible for the administration of the Supreme Court, I make the point that we are only left to speculate why.

There have been some views that have been bandied around the legal fraternity about why the Deputy Premier may be pushing for this reform. The Deputy Premier is quick to claim, of course, that the South Australian bar supports this move, and maybe some of them do, maybe most of them do, maybe even all of them do, but that is not the entirety of the legal profession. It certainly excludes the feedback with which we are yet to be provided from the court itself.

And of course who on the bar, particularly which senior member of the bar, and even more particularly which senior member of the bar who perhaps one day has an ambition of serving on the court, is going to criticise the Attorney-General of the day who has plans to modify how that court is to operate? That is basically signalling very publicly that that senior member of the bar would not be interested in an appointment to the Supreme Court, at least not under a government of that ilk, so I am not surprised that there have not been heads poked up above the parapet from the bar about whether this is a good idea or not. I think it is eminently reasonable to make that connection.

The Hon. V.A. Chapman interjecting:

The Hon. S.C. MULLIGHAN: The Deputy Premier muttered to herself that this is unbelievable. Well, it is absolutely not—it is absolutely not. We have had the same process of making appointments to the Supreme Court in this state for decades. It is no secret to the legal community here in South Australia about how that is done, and I am not surprised that members of the bar have not been willing to poke their heads up and criticise these changes. The Law Society, of course, which perhaps has broader representation than the bar, has raised concerns with this and it also makes the point that again we have had no compelling case or reason put forward to establish this.

In raising the matter of judicial appointments, I also acknowledge that we have a number of unresolved vacancies in the court: definitely one, soon to be two and quite possibly three. I can imagine that the Attorney is very much looking forward to taking up her opportunity of making those appointments and in that way showing her influence upon the composition of the Supreme Court.

While we all know how judicial appointments are made here in South Australia, and indeed similarly in other places around Australia, we have a very different regime of course. We enjoy a very different regime, and a necessarily different regime, from how Supreme Court appointments are made in other jurisdictions and in other places, like the United States, where it is regarded as the purview of the executive where possible to stamp their ideology and to stamp their particular perspective on the composition of the Supreme Court. We only have to look back at the relatively short tenure of the United States' current President, Donald Trump, to see how he has attempted to do this.

I would hope that an attorney-general faced with the unusual circumstance of having to make up to three judicial appointments in very short time would not be so motivated by the kind of base political motivations we see exerted every time there is a judicial appointment to the United States' Supreme Court. In that regard, perhaps it was inopportune for the member for Heysen to jocularly make reference to an amendment to the Constitution Act that this bill seeks to make. Of course, he and the Deputy Premier are always interested in amendments to the Constitution Act.

Let's get right to the nub of it, and let's not dance around it: this is about how electoral boundaries are drawn. That was the inference from the comments from the member for Heysen. Of course, we all know the truth behind the matter—it was the member for Heysen who did the intellectual heavy lifting for the Liberal Party for their presentation to the boundaries commission. It was not Morry Bales. He only wrote that article in InDaily leading up to the AGM of the South Australian branch of the Liberal Party in order to try to better his standing in an effort to gain Senate preselection. I think this place can be far kinder to the member for Heysen and acknowledge his role in the presentation of the South Australian Liberal Party before the Electoral Districts Boundaries Commission.

In raising the issue of amendments to the Constitution Act, of the oblique reference to change in the Constitution Act insofar as it relates to the drawing of electoral boundaries, we are left to pose the question, again in the absence of no case being made and in the absence of any data being provided as to why this is necessary: is this an effort by the government to try to create and shape the membership of a new court of appeal division to be created within the Supreme Court? This new division will, amongst other things, not just hear appeals of criminal cases or civil cases but may be called on from time to time to exert its particular role in statutory interpretation.

Is this really perhaps this government's opportunity to try to create and then shape the membership of this court of appeal division so that, if these matters of statutory interpretation bubble up to the surface, particularly about interpretation of the Constitution Act, particularly with reference to such matters as, for example, the drawing of electoral boundaries—not that we would ever traverse this area, for example, the appointment of presiding officers to this place, those sorts of important matters—should we be in those sorts of situations, where the court has to interpret significant pieces of law like the Constitution Act, I would hope that this is not a measure by which this government can appoint a number of Supreme Court judges to make sure it has populated to its satisfaction a new court of appeal division within the Supreme Court.

If that is the motivation of this government—and, again, we have no choice here but to speculate, given no case has been made for this change—then that would be an outrage. We know that in the 1970s former attorney-general the late Hon. Len King deliberately established the independence of the Courts Administration Authority, as well as the responsibility for superintendence of the particular courts here within the hands of the Chief Justice, the Chief Judge or the Chief Magistrate. For that to be impinged on by this Attorney-General in an effort to create this new court of appeal, and in an effort to pursue those motivations, would be a very terrible thing indeed.

It is in those contexts that it is entirely reasonable for the parliament to reject this bill. If no case has been made to establish this court of appeal, if no evidence has been provided that the court is failing to handle its case load, and if no evidence has been provided that the current composition of the Court of Criminal Appeal or the Full Court have heard that the results of those appeals are somehow unsatisfactory, then why should it be changed?

Are we in the situation that the Victorian Court of Appeal finds itself in, where there has been criticism by the High Court of some of the rulings, findings and judgements handed down by that appellate division? Are we in that situation? If so, those examples should be provided to the parliament. We need a far more persuasive reason for why this is needed, but we do not have that evidence. There has been no suggestion that the High Court is dissatisfied with how the Supreme Court, its Court of Criminal Appeal and its Full Court are either constituted or managing their business.

The last point I would make is this: in the Deputy Premier's second reading explanation, there is the claim that having a separately constituted group of Supreme Court justices who only hear appeals will lead to the better hearing of appeals in general. This is an argument we have heard from some clinicians in the hospital system: that you should have a group of surgeons busy doing the one type of surgery because the higher frequency means they get better and better at it. That may be the case in the medical profession, but I cannot imagine it is the case in the legal profession because there is a whole range of reasons why appeals are pursued. It might be because the conduct of a trial in a way or in various ways was deemed unsatisfactory by one side or the other in the case.

I would have thought that having a group of judges who are responsible for not only hearing matters directly but also conducting trials and civil cases directly would make them familiar with and expert in the conduct of trials and the hearing of cases. So, when they come to hear an appeal based on whether the conduct of a case or the hearing of the trial was appropriate or not, they then have greater contemporaneous experience with the conduct of these matters before the Supreme Court.

To say that that should be separate, I think, creates the risk of entirely the opposite occurring: that a small pool of judges becomes increasingly distant from how cases are conducted and heard and, as such, their sympathy for how a case has been conducted and heard, or their understanding of the reasons why a case or a matter has been heard in a particular way, is eroded, and that is to the detriment, not the enhancement, of an appeal. For all those reasons unaddressed and unanswered by the government, as well as not having heard the key evidence in this, which is the Chief Justice's opinion, of course the opposition will be opposing the bill.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (11:55): In response to the debate on this matter, I start by thanking the Hon. Kyam Maher, who is the shadow attorney-general for the opposition, for discussions with him and correspondence; I will refer to that shortly. He is of course in another place and ultimately may make a contribution in relation to this bill if it is passed in this house. I acknowledge the member for Kaurna's contribution and those of the members for Lee and Heysen.

The flavour of the contributions of the members for Kaurna and Lee suggests that in the absence of there being material before the parliament to consider that outlines the Chief Justice's view on this matter, there is no case to support the passage of this legislation. I will outline a number of aspects relating to that shortly. In relation to the member for Lee's contribution, whilst he sets out a similar path as the basis for his objection, he goes on to speculate as to the merits and motivation of the government in presenting this for the parliament's consideration.

Let me be quite clear on two matters: firstly, the assertion that there may be some motivation to in some way establish an appellate court which would have responsibility, ultimately, in matters such as Electoral Districts Boundaries Commission decisions I find to be, frankly, insulting. Not only that, I remind members that in only a recent case of the Full Court of the Supreme Court—the case of Martin v Electoral Districts Boundaries Commission—five judges, all of whom I point out to this parliament are judges who have been appointed by Labor administrations on recommendation to the governor of the day, made a decision, 5-0, that served to dismiss the appeal of the secretary of the Labor Party.

If there is any suggestion that those five judges in some way had been politically motivated in relation to that—to in some way be grateful for their appointment to a particular government—that smashes that entirely. I do not share that view, and I think all members ought to appreciate that when the government of the day makes a recommendation for judicial appointments, and I have indeed had the privilege of doing so for a number of other appointments to courts already, those judges are always appointed by the governor of the day and, certainly in the time I have been in the parliament, they have been without criticism by me as shadow attorney-general.

I will be perfectly frank in saying that some of them, judges who have been appointed under previous governments, are not people whom I would rush to as my first choice in putting as a recommendation. That is not the point. These people are eminent, experienced people in the profession and they have been recommended and have accepted positions of appointment of judicial office.

As a member of the executive, I make it absolutely clear that those appointments are made, and there is a respect that must prevail between the three arms of government—executive, parliament and judiciary—that supports the notion that, as a member of the executive or as a member of the parliament, it is entirely inappropriate that we make personal criticism of those who have been appointed. In any event, the assertion that is made about the motivation of the government to in some way have a role in being able to populate a new court to ensure some political outcome on electoral boundaries is scandalous and insulting.

The second aspect suggests that the concept of having specialists, as distinct from generalists in the court that currently exists—some analogy was made by the member for Lee to surgeons in hospitals and the benefit in having a number of cases in which they fine-tune their capacity to undertake a more skilled approach—is one that should not apply to legal structures. I am not sure that I quite understood that analogy but I will just say this. The Chief Justice has made it clear to us and, I think, clear to the member for Lee, who has personally met with the Chief Justice, that this decision as to the structure of the court is a matter for the parliament—not the executive, not him as the head of the council, but a matter for the parliament.

Again, there is an assertion that there is in some way a motivation to establish a court of appeal which is inconsistent with something that might be effective. As I say, I do not fully understand that argument but I make the point—and I will be referring to this shortly—as to the Chief Justice's acknowledgement, indeed, that this is a matter for the parliament.

The extension of that to the argument that the late Len King, a former chief justice of this state and former Labor attorney-general, established the Courts Administration Authority and the superintendence generally in relation to the management of the courts, is not inconsistent with this parliament making a decision about a court of appeal. They are two entirely different matters; therefore, as an argument, it falls somewhat short. Nevertheless, we are here to make a decision because we, as members of the parliament, are the ultimate determiners of how this is to operate.

Finally, I acknowledge the contribution of the member for Heysen. He is fresh from the bar, fresh from the real world, and he is able to bring a perspective of the history of the appellate jurisdiction and the statutory basis for it. He also brings a reflection as a recent and, I think, highly regarded member of the bar who appreciates many of the other contributions that have been made in support of the establishment of a court of appeal.

On the question of the opposition being unable to support the bill, I think largely they are suggesting that there simply has not been enough information available to them to make an informed decision. Complementary to that, they assert that the shadow attorney-general had sought copies of correspondence between the government and the Chief Justice and that the declining of making that available, consistent with precedent, is something that they therefore take objection to.

Let me be very clear about what has happened. First, the government have presented an appeal proposal in this bill to the parliament. Second, briefings have been offered to the representatives, particularly the Hon. Kyam Maher, but I am aware that other members of the opposition have made themselves available for that.

Third, and most importantly, whilst we have declined to provide copies of correspondence, I am aware at least of the member for Lee's meeting with the Chief Justice. I do not know what they did in their meeting, what they discussed, how much detail was outlined as to the view of the Chief Justice on this matter or whether they talked about something else. That is a matter for them.

They had a meeting and the Chief Justice advised me of that. He provided me with a schedule of matters outlining his decision to acquiesce to that request, which I fully endorse, not that he needs my permission to do that. Nevertheless, that has occurred. The shadow attorney-general was also advised by me personally that that meeting was taking place and that he may wish to avail himself of a personal meeting with the Chief Justice should he request to do so. I do not know whether he ever has since, but that is the position that has occurred.

Fourth, and importantly in this area, yes, as the member for Kaurna has pointed out, I had a meeting with the Chief Justice late last week (actually, I think it was on the Wednesday) and advised him that I would introduce the bill to the parliament. He wanted to express his view and I indicated that, if he wished, he could put to me a list of matters that needed to be presented to the parliament. He suggested there be some discussion between us as to an agreed schedule of what was to be presented.

I just want to say to the parliament that I do not see myself as being in a position of wanting to edit what the Chief Justice wants to present to the parliament, nor will I, consistent with precedent, as I have said, disclose correspondence. However, I will be outlining a number of issues that he has raised in this contribution, some of which I think have already been picked up in the debates. As we know, the Chief Justice, as I have already publicly stated and we fully acknowledge, is hardly supportive of this restructure. Nevertheless, to ensure that his view is presented, I will outline that shortly, together with some further information.

Before we go there, I am going to remind members of what others have said in relation to this. Firstly, the Law Society has been referred to. They acknowledge that South Australia is one of the few jurisdictions remaining not to have a court of appeal. They raised some questions, some of which were concerns raised about support of the existing Supreme Court, and suggested that there had been reductions in closing and downsizing of suburban and regional courts and registries. I just want to say that, under the Liberal government, that has not occurred.

Secondly, the Courts Administration Authority, as the agency to receive funding, has been in a way quarantined from efficiency measures. It has had tens of millions of dollars presented to it to enable it to purchase the Sir Samuel Way Building, which will be used as a dedicated court for mainly District Court work and will also be prepared for jury trials for major criminal work, which are Supreme Court matters as well. I just want to make that clear for those who are relying on that submission.

The Law Society also make some recommendations. Some are a little bit unique, I must say, and had not been raised with us by the Supreme Court. There was an aspect of who should be able to hear an application for leave to appeal, which is consistent with a number of other submissions, which I will not go into detail on. One of the ideas raised was only put as an idea because it was really a summary of matters raised by various persons unidentified in the submission. Paragraph 19  states:

In addition, it has been suggested it may also be appropriate to include a provision to codify the existing practice where a major legal issue is involved, or the Court of Appeal is being asked to overrule an existing Court of Appeal precedent, that a five judge Court of Appeal can be convened.

That is a completely novel idea. Nobody has ever put it to me, except the Law Society, and it seems to be a bit of a light-bulb idea that has been presented. In any event, the Law Society have outlined in their submission a number of aspects which have been picked up in the presentation to us, which has ultimately come into the parliament, and we thank them for it.

The South Australian Bar Association go so far as to welcome the establishment of a court of appeal for South Australia. I might say that that is a far cry from the prediction by the member for Lee that barristers are hiding behind some pulpit of open fire, that they might not be considered and therefore are hiding away from making any submissions. The president of the Bar Association sets out the position of SABA, which of course is the association representing barristers in South Australia, and has come out to openly welcome the establishment of a court of appeal. He says, and I quote:

The SABA respectfully agrees that there will be benefits in developing appellate expertise and that this should lead to increased quality and efficiency in appellate decision-making.

He goes on to say:

It is the SABA's hope that this re-structure will also allow for focus on improving timeliness in the trial courts. The South Australian Supreme and District Courts had 'backlog indicators' amongst the highest in the 2019 Report on Government Services. This is no doubt multi-factorial but deserving of attention.

Further, he says:

At least anecdotally, our Supreme Court also lags behind other similar courts around the country in the delivery of judgements after hearings. This may have been partly because of the difficulties in balancing trial and appellate work. There is a perception that the Supreme Court is a less desirable venue in which to litigate, particularly heavy commercial litigation, as compared with, for example, interstate Supreme Courts or the Adelaide Registry of the Federal Court. It is hoped that this new legislation will assist in overcoming those perceptions and improving the performance of the appeal and trial divisions of the Supreme Court of South Australia.

The submission also sets out specific recommendations in respect of the drafting, and we received a more recent recommendation that has also been taken into account. That alerted the government to the fact that the change to section 17 of the Supreme Court Act 1935 may have inadvertently denied, or at least appeared to have denied, the Court of Appeal with the traditional jurisdiction of the English courts and set out the basis for that argument and their suggested remedy.

I am advised that all of that has been accommodated in the draft that we have. I thank them sincerely for their courage under fire, for not hiding away, for actually telling us exactly what they think, and the reasons for it and for being most helpful in their submissions. Should the member for Lee want to quote data, I would urge him, if he would like to have some updated data, to look at data.sa.gov.au/data/dataset/caa-ar-at-a-glance, which gives some updated data in relation to matters that support that contention.

The Legal Services Commission state in their submission that 'the commission supports the establishment of a court of appeal in South Australia'. They go on to make commentary in relation to that and, interestingly, send to us the report of the Hon. Justice Michael Kirby, as he then was, and his 2008 article for the Sydney Law Review, in which the political problems that can arise from judicial supersession and their impact on the efficient operation of the justice system were examined. I think we had sent out that article. They must have been so impressed with it that they sent me back a copy, suggesting that this was yet another argument for having a separate court of appeal. Again, I thank the Legal Services Commission for their consideration of the proposal and their support thereof.

I am going to refer to some submissions of the South Australian Employment Tribunal president and also other heads of jurisdiction. It is important to remember that, whilst the Chief Justice is the head of the council, and of course the Chief Justice of the Supreme Court, other courts, jurisdictions and tribunals also rely on the Supreme Court as their ultimate appellate body. They have a vested interest in considering whether or not they support a court of appeal.

I think it is fair to say that in this regard the president sets out examples in his submission of amendments and the applicability of the use of a court of appeal, particularly under the new bill, as it affects the South Australian Employment Tribunal and, in particular, with reference to the constitution of not less than two judges when hearing and determining any matter. He expressed a view which ultimately we declined to accommodate, but that was in deference to accepting the advice of the Chief Justice as to the complement that was required in that regard.

Interestingly, ReturnToWorkSA also presented us with a submission, having reviewed the draft and raised this same issue of the two judges constituting a court of appeal. Again, they are a significant party in relation to workers compensation cases in the tribunal. The Chief Magistrate also presented a submission, which set out some recommendations, largely in relation to the regulation aspects and some administrative implications relating to that, and I thank her for her contribution in that regard. The newly appointed state Coroner said:

Thank you for giving me the opportunity to comment…I should only say that from my perspective the bill gives rise to no concerns about the proposed institution of a Court of Appeal, or the proposed legislative mechanism.

The Judicial Conduct Commissioner (Hon. Bruce Lander QC) set out his view, and of course I value that. He is a former judge and I think has a very good understanding of these matters. He provided some advice as to the proposed legislation and the drafting, and I thank him for that. He acknowledges that this is a matter of policy, so he does not get into the discussion about whether there is one or not.

The Acting Director of Public Prosecutions made a comment in relation to a drafting matter, which we thank her for. In relation to the Commissioner of Police, the police prosecutions unit is a very significant part of our court process because very often the parties are involved in investigation and arrest in relation to criminal matters. They play a role in relation to the prosecution of matters through the lower courts. They go so far as to say that SAPOL has no concerns in respect to division 26, which is the provision here, and supports the bill generally. I thank the commissioner for that. The Valuer-General set out some amendments because, as members might appreciate, there is a Land and Valuation Division of the Supreme Court. She made some comments about that and reviewed those features but does not make comment otherwise.

All these people have an active and important interest in relation to how our courts are structured and they ought to be considered—and we have. In addition to that, I have met regularly with the Chief Justice, over a significant period of time actually, and given him an exclusive period of time to consider the original draft before it went out to consultation with any of the other parties. Why? Because, as I think it should be acknowledged, he is the Chief Justice. It is his court that is the subject of variation as a result of this legislation and therefore it is important that he be consulted.

I want to assure the house that we have had a number of discussions about a number of these matters and he has made some very helpful recommendations as to how the structure should apply if the parliament determines that a court of appeal be established. In addition to the matters of conversation and correspondence that we have had, as I indicated late last week, the Chief Justice has presented a list of eight matters representing the views of the judges of his court.

I am going to put on the record the views of the current serving judges of the Supreme Court with respect to the proposal, as expressed to me by the Chief Justice. Firstly, one of the issues raised is that a court of appeal has not been formally proposed by the presidents of the Law Society and the SA Bar Association in their meetings with the Chief Justice and, secondly, neither the Chief Justice nor any of his predecessors have recommended the establishment of an appeal division.

I comment on that as follows: that may be so; however, the proposal to establish a dedicated court of appeal was previously raised and discussed with the former attorney-general. In fact, the Hon. John Rau and I had conversations in my role then as the shadow attorney-general in respect of that proposal, and I viewed correspondence in relation to that recommendation.

The decision of the previous government not to progress that is a matter for the previous government, and I do not place any comment in relation to that. That is a matter for them; I just place that on the record. Furthermore, it is important to note that, in its submission on the bill before the parliament, the South Australian Bar Association welcomed the establishment of a court of appeal South Australia, describing it as 'this most welcome legislative development'. As I have already indicated, they also expressed their support of this reform to me personally.

The third matter listed by the Chief Justice is as follows: it has been suggested that the utility and efficiency of a court of appeal is dependent on the population of the state and the extent of the litigation in its courts. The judges do not consider that South Australia has the critical litigation mass to warrant a court of appeal.

I indicate to the parliament as follows: firstly, in regard to population, I highlight that Western Australia was the most recent jurisdiction to establish a permanent court of appeal. Prior to its establishment, a high-level committee was established to examine whether it was desirable and feasible. At that time the committee published its final report in 2001, in which it recommended that such a reform would advance the administration of justice, the population of Western Australia was approximately 1.9 million. I refer to the Australian Bureau of Statistics, Demography, Western Australia, 2001.

According to the Australian Bureau of Statistics, the preliminary estimated resident population of South Australia as at March of this year was approximately 1.7 million—I suggest not a huge difference. Moreover, the experience in New South Wales, Victoria, Queensland and Western Australia has proven this to be a superior court structure for both function and efficiency. I want, our government wants—and I think ultimately the parliament will see the benefit of this—our Supreme Court to become a significant player in the federal legal scene. The experience borne out interstate has proven that this reform will improve the efficiency of our court system and will also mean higher quality and more consistent judgements. We have the benefit of seeing whether this court structure produces better results, and it does.

Fourthly, the Chief Justice outlined the following: that the judges have also suggested that an appeal division must be constituted of at least five judges, with additional judges required because of the rigidity of the proposed structure. They have also highlighted that appeal judgements are often written by judges after the appeal has been heard and whilst assigned to matters which do not make as heavy a demand on judgement writing. Judges appointed permanently to an appeal division will from time to time need unassigned months in which to write judgements, hence the need for the additional judges.

In relation to this, I respond as follows: in regard to the requirement of unassigned months in which to write judgements, this touches on one of the reasons a dedicated appeal court is desirable. It has been the experience that, following the establishment of courts of appeal around the country, not only are hearings shorter but judgements are delivered more quickly.

The Western Australia report found that, at the time, statistics from all three jurisdictions were impressive in this respect. It found that it is rare for judgements to be reserved for more than three months after hearing. Most are delivered in between one and two months. The delivery of judgements within a week of hearing is by no means unique.

The report also found that in New South Wales the practice of giving extempore judgements, particularly in criminal sentencing cases, had increased and was occurring in 80 per cent of cases. Furthermore, an extra advantage is that permanent appellate courts have proven to encourage the introduction of innovative practices, which are harder to develop in a court of constantly changing membership. For example, in New South Wales, when it was first established, new practices enabled the expedition of certain appeals or applications for judicial review if urgency could be shown.

Again, I refer to the contribution of Justice Michael Kirby in his speech to the Monash University Law Students' Society inaugural public lecture in memory of the late Honourable Justice Lionel Murphy at the Law Institute of Victoria, Melbourne, on Friday 9 October 1987. In short, dedicated appellate courts are desirable because judgements are delivered more quickly due to the development of appellate expertise. This is a desirable outcome for all South Australian court users.

The fifth matter raised by the Chief Justice is that judges have suggested that the present system of rotation through the appeal and trial lists of the court provides an opportunity to allocate judges to matters requiring their particular expertise and to allow others to deepen their experience in a broader range of matters. It also contributes to a collegial court. In my response, may I firstly say that people appointed to the Supreme Court bench are appointed due to their professional skill and experience. They are highly distinguished legal practitioners, as I have already outlined, and from years of experience have usually developed a significant diversity of expertise.

Furthermore, the bill contains specific provisions to enable the Chief Justice and the president to jointly authorise a judge of the appeal court to temporarily sit in the general division and vice versa. This flexibility will ensure that these concerns are addressed, as well as accommodate periods of time when certain judges are unable to hear particular matters due to absences, on leave, or conflicts of interest.

The bill also ensures that auxiliary appointments can be made directly to the appeal division for these same reasons. On the issue of collegiality, I note that the Western Australian report found that in all other jurisdictions a strong sense of collegiality had been developed following the establishment of the appellate court.

The sixth matter raised by the Chief Justice is that judges have highlighted that the cost of appointing an additional judge with support staff is approximately $1.329 million annually. The cost of an appeal division will be greater if the remuneration is higher than the existing trial judges or if they are not accommodated within the existing Supreme Court complex. In response, may I assure the house that at the heart of this reform is the government's desire to create a more efficient court system for the people of South Australia by improving both the function and efficiency of the Supreme Court. Any expense incurred in the establishment of a court of appeal is an investment in the future efficiency of our courts.

Whilst there may be an up-front cost to implement the new structure, much like when SACAT was established under the former Labor government, the up-front cost can be justified when it results in improved efficiencies and greater access to the justice system. However, I note that no decision has been made as to the location of where the appeal court will sit, and I will continue to consult with the Chief Justice on that matter.

The seventh matter raised was that it has been suggested that the establishment of an appeal division may make appointment to the Supreme Court less attractive to some senior members of the bar. An appointment exclusively to the trial or appeal divisions will diminish the opportunities for a judge with strength in matters of a particular kind to hear such cases. An appointment to the Federal Court may become relatively more attractive.

In relation to this matter, and on the first point, I note the Bar Association's support for the establishment of a court of appeal for South Australia. I also note that the findings of the Western Australian report were that the courts of appeal around the country have developed a status and authority not previously enjoyed by full courts of earlier days.

The Bar Association's submission on the bill also stated that there is a perception that the Supreme Court is a less desirable venue in which to litigate particularly heavy commercial litigation. In pursuing this reform, the government wants to overcome this concerning perception and see our Supreme Court rank as the best and most efficient in which to litigate.

The eighth and final matter raised by the Chief Justice is as follows. The judges have indicated that matters are usually listed in the Full Court within several months of parties requesting a hearing date but that trial courts generally have longer wait times for a hearing. May I advise the parliament, in response to that, that the data suggests that there has been an overall downward trend in the civil trials since 2016. Despite this, the Supreme Court has failed to meet its own backlog targets since 2013-14.

The court has two key backlog targets: (a) no more than 10 per cent of lodgements pending completion are to be more than 12 months old and (b) zero are to be more than 24 months old. Neither of these targets has been met over the five years since 2013-14 to 2017-18. I refer members to the RoGS, as it is often called, the Productivity Commission's Report on Government Services 2019. For example, civil non-appeal matters recorded backlogs well above the target rate for this entire period. For each year, the percentage of matters pending completion over 12 months old remained above 20 per cent and, in some cases, over 30 per cent.

Furthermore, the Chief Justice, as I have stated publicly, has asked that the Supreme Court be relieved of some other work related to the management of high-risk offenders. That is currently under consideration and, if ultimately progressed, would further reduce the workload of the trial and general division of the court. These are the matters that have been raised by the Chief Justice, and I hope that I have outlined the position that the government sees as important for the parliament to consider.

These are the matters that have been raised by the Chief Justice. The information provided is not something that I have personally expressed, but these matters rely on the data. They rely on the experience of the other jurisdictions. They rely on the reports that have been prepared in Western Australia. They have relied on the recommendations of eminent jurists such as Michael Kirby, formerly of the High Court of Australia. These are not matters to be dismissed. This is not my personal view. I agree with it; how could you not, given the level of eminence that has been presented?

If I may say so, a number of the matters raised by the Chief Justice reflect a concern about what may happen. It is reasonable for any chief justice to be concerned about the collegiality of his court and to respond if there is any criticism of his court. I have made it abundantly clear, both in the second reading in this parliament and publicly, that the proposal to have a permanent court of appeal in this state is in no way based on a criticism of the current members of the Supreme Court and the work they do in this important area.

This is designed, with the support of other eminent people who have looked at these matters, to provide an even better service. It is certainly my objective, and I know it is that of the government, to ensure that our state courts become a significant player in the federal legal scene, that we arrest what I see as a concerning reduction in important commercial cases in our own state's courts and that we restore our Supreme Court to the status it should enjoy.

The other matter I wish to raise is the question by the member for Kaurna, and that is the detail of who is going to populate the appeal court, how they are going to be selected, how many there are to be, where they are to be located, what additional resources they might need. They are all important questions. The former Labor government presented to the parliament a new structure with SACAT in 2013, which was introduced by the Hon. John Rau (former attorney-general) in July 2013, when he outlined that the umbrella legislation was proposed in that first bill and, as to matters such as who is to be appointed, even as president, he said:

Appointing the President shortly after the passage of this Bill will ensure that she or he plays an integral part in overseeing, assisting and informing the nature, extent and scope of the integration of existing tribunals, boards and other bodies into the Tribunal.

So, too, it is important that, as to the composition and venue in such matters, if it is the will of the parliament to have an independent court of appeal, they be matters where we go back to the relevant parties, particularly the Chief Justice, and continue to work with them in that regard.

I want to place on the record that, notwithstanding the Chief Justice's concerns raised, which I have outlined to the parliament, I consider at least—and I think he has considered; I hope he has——that we have continued to have an excellent working relationship on the machinery matters, apart from all the other matters we have to continually confer on.

I place on the record my appreciation of the Chief Justice having invited me to attend the Supreme Court premises on Gouger Street to view the premises—and, in fact, there is some work being undertaken there for upgrades to various courts—to be able to identify potential areas where members of a court of appeal could be accommodated, if ultimately it is the will of the parliament to have a court of appeal. So I appreciate the provision of that by the Chief Justice.

In October 2013, when the South Australian Civil and Administrative Tribunal Bill was under consideration, the Hon. Stephen Wade of another place asked of the Hon. Gail Gago, who was the minister responsible for handling the matter in the other place, a number of questions about the same machinery questions. For example, he asked:

I ask the minister what the government intends as the time frame for the appointment of the president?

The Hon. Gail Gago said:

I have been advised that the Attorney-General's preference is to make the appointment to the president's position as soon as possible after this bill has been proclaimed.

The Hon. Mr Wade said:

…I am wondering whether the appointment of the president will be an appointment to a current vacancy or whether it will be the appointment of an extra judicial officer.

The Hon. Gail Gago said:

I have been advised that that has not been decided yet.

The Hon. Mr Wade goes on to ask about funding within the SACAT budget for a judicial officer to which minister Gago said:

I am advised that we do not have that level of financial detail with us, so I am happy to take that on notice and bring back a reply.

I never found one, incidentally. The Hon. Mr Wade thanked the minister and then asked:

…how many deputy presidents does the government intend to appoint?

Minister Gago said:

I have been advised that while there is a capacity to have more than one deputy, the intention at this point in time is to only have one.

As to the venue, minister Gago said:

Yes, the Sturt Street courts have been considered but no final decision will be made and will not be made until after this bill is in place.

She went on to say:

It is too early to make those decisions. It will depend on who else might come into the building. Those are all decisions that will need to be made at a later date.

Mr Wade asked the question:

Does the government have indicative figures as to the number of staff that it is anticipated the new SACAT will need?

Minister Gago said:

The member has really answered his own question. It is just too early to have those estimates.

The debate goes on, but I make the point that it is for the parliament to determine the establishment or not of the new court. We did it with the tribunal back in 2013. I am presenting to the parliament, on behalf of the government, a proposal for its consideration. If it supports that, these are matters that will then flow and for which, quite appropriately, the SACAT model sets a precedent.

As a matter of interest, the government of the day went on to appoint Supreme Court Justice Parker as the head of SACAT at the time. He has since returned to the Supreme Court, and Justice Judy Hughes is now responsible in a full-time capacity—it went from half-time to full-time. There is no deputy president, but for a short period there was a quarter-time District Court judge for that position. So it has developed and changed.

In fact, I am currently discussing with Justice Hughes her views on some newer refinements in relation to the model of the operation of SACAT now that we have brought two key areas of the work of that tribunal—guardianship and tenancy matters—together into one premises in Adelaide city. These matters will follow, if it is the will of the parliament, to cover the same.

I think that covers the matters that have been raised, except for one issue, that is, the references—according to my notes, they were from the member for Kaurna—in relation to vacancies in the Supreme Court. Can I place on the record the position, because the Chief Justice has made comment. I am not sure that Mr Nigel Hunt has actually accurately recorded all this—

Mr Picton: Oh, really? He got it wrong, did he?

The Hon. V.A. CHAPMAN: —all the information. That is a matter I can discuss with him. However, it confirms a concern of the Chief Justice that there are vacancies in the Supreme Court. As has been pointed out, at least by the member for Lee, there in fact is only one vacancy in the Supreme Court. It arose out of the retirement of Justice Vanstone in mid-June 2019 and acknowledges the imminent retirement of Justice Hinton, who will take up his position as the new director of public prosecutions. That has not occurred, but it is imminent.

Whilst the judge has not been sitting on trials since the public announcement, for obvious reasons, I am advised that he has continued to work diligently on the completion of judgements and to work as a judge. It does not mean that he is not doing anything or that he is not making a contribution: he is making his contribution as he would if he were still there. He is simply not sitting on new trials, and—

Mr Picton: 16 per cent less capacity.

The Hon. V.A. CHAPMAN: The member interjects to talk about a 16 per cent reduction once the two of them are no longer available.

Mr Picton: No, as the Chief Justice says, now.

The Hon. V.A. CHAPMAN: I would just make this point: I urge the members to view the data as to what has actually occurred in the reduction of work at the Supreme Court. There are two things that have occurred; one is that the court has taken the opportunity, probably wisely, to redraft its rules for applications in a number of jurisdictions. My understanding is that Justice Blue has undertaken the lion's share of the responsibility for that. He has been given that responsibility to complete. I certainly hope that it is catching up on some of its judgements and work.

I was listening to Lindy Powell QC on the radio this morning when she outlined her concern of judgements sometimes being years before they are provided, which is a pretty serious matter. Whilst we have under the statutes a Judicial Conduct Commissioner to manage these sorts of concerns, nevertheless it is still very important that we try to support our court system to ensure that we do not have this delay.

Frankly, it is not such a difficult area in relation to murder or serious indictable matters—we are not going to have any treason cases in South Australia. In murder cases, because frequently there is a jury determination (sometimes not, but mostly a jury), the work of the trial judge is not to determine guilt or innocence but largely to consider sentencing submissions and the like.

The delay in waiting for either a trial or a judgement in a civil matter means that, whatever the determination—whether it is a compensation claim, whether there is a commercial aspect that needs to be considered or whether an estate is in dispute—people's lives are on hold while they are waiting for judgements, so it is very important that we understand the significance of months of delay. Lindy Powell said there used to be a practice of a period of up to six months being an acceptable delivery of judgement, but we have the situation where it goes way past 12 months.

Unfortunately, the data does not give us a very generous interpretation in relation to that, so we have to do everything we can to try to make sure that the court is given sufficient tools and resources to actually be able to bring that up to a standard that not only is effective but ensures the reputation of the court to make it attractive. It is also very important to us as a government that we provide that.

I appreciate to some degree the concern of the opposition in not having the Chief Justice's information in a format that the summary has been provided. That has been provided to me. I have presented it to the parliament. We only got that late last week. I did not see it as a role for me to start editing it, but I make this point: the member for Lee has had an opportunity to meet with the Chief Justice on this matter and an invitation has been put to the shadow attorney-general. I do not have any understanding as to whether or not he has availed himself of that.

I maintain the position and the precedent of not providing correspondence to the parliament that has been provided by the Chief Justice, but I hope that I have comprehensively and fairly set out the concerns of the Chief Justice and his expression of views in relation to this matter. He has presented to me a reflection of the position of the current serving judges, so it is not just his personal opinion but in concert with his judges. I should also thank him for his invitation—indeed, request—to meet with his judges, which I did earlier this year so that they could express their views directly to me. I thank them for taking the time to do that and the Chief Justice in particular.

The house divided on the second reading:

Ayes 25

Noes 19

Majority 6

AYES
Basham, D.K.B. Bedford, F.E. Brock, G.G.
Chapman, V.A. Cowdrey, M.J. Cregan, D.
Duluk, S. Ellis, F.J. Gardner, J.A.W.
Harvey, R.M. (teller) Knoll, S.K. Luethen, P.
Marshall, S.S. McBride, N. Murray, S.
Patterson, S.J.R. Pederick, A.S. Pisoni, D.G.
Power, C. Sanderson, R. Speirs, D.J.
Teague, J.B. van Holst Pellekaan, D.C. Whetstone, T.J.
Wingard, C.L.
NOES
Bettison, Z.L. Bignell, L.W.K. Boyer, B.I.
Brown, M.E. Close, S.E. Cook, N.F.
Gee, J.P. Hildyard, K.A. Hughes, E.J.
Koutsantonis, A. Malinauskas, P. Michaels, A.
Mullighan, S.C. Odenwalder, L.K. Piccolo, A.
Picton, C.J. (teller) Stinson, J.M. Szakacs, J.K.
Wortley, D.
PAIRS
Treloar, P.A. Bell, T.S.

Second reading thus carried; bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: Who do the people of South Australia trust—

The ACTING CHAIR (Mr Duluk): Member for Kaurna—

Mr PICTON: —the Attorney-General or the entirety of the of the Supreme Court?

The ACTING CHAIR (Mr Duluk): Member for Kaurna!

Mr PICTON: That is what people are being asked to judge on.

The ACTING CHAIR (Mr Duluk): Member for Kaurna, please take your seat for a moment. We are in committee. As you know, committee is where the minister can be asked questions of clauses in the bill. It is not the time for impromptu speeches. If there is a question with your preamble, I am more than happy to hear it, member for Kaurna.

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:00.

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