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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Supreme Court (Court of Appeal) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2019.)

Mr PICTON (Kaurna) (11:02): I rise to speak in relation to the Supreme Court (Court of Appeal) Amendment Bill 2019, and I indicate that I am the lead speaker for the opposition. At the outset, I indicate that the opposition will be unable to support this bill. There is a very good reason for doing so: we do not know the position of one of the most important stakeholders—that is, the Chief Justice—and we do not know the position of the courts.

It is pretty remarkable to have an Attorney-General introduce a bill to establish new courts. It is a very long time since the last new court was established. This is not something that they took to the election. This is not something about which there has been a groundswell of opinion saying that such a court is necessary. This is not something about which people have been knocking on my door in my electorate saying, 'What we really need is a new court of appeal in South Australia,' and we as the parliament—particularly, we as the opposition—are definitely not aware of the position of the Supreme Court and the position of the Chief Justice of the Supreme Court in relation to the Attorney-General's proposition to establish this new court.

The Attorney-General has refused so far to release correspondence with or submissions from the Chief Justice that relate to this proposed change. I know the Attorney-General has said that she cannot provide the submission or correspondence from the Chief Justice. As she says, there is a longstanding convention that correspondence between the Chief Justice and the Attorney-General is confidential. However, we do not accept that that should be used as a shield to prevent the views of one of the most important people in this regard from being made public.

What the house is considering here is a very significant change. The members of this parliament, who are considering this change, owe it to our constituents to fully comprehend the ramifications of such a change. We believe it is the height of arrogance for the government and the Attorney-General to insist that this bill be considered without all the information being made available to inform the debate. However, we do know that this is par for the course, sadly, for this arrogant and out of touch government.

The shadow attorney-general in the other place has been trying to find out what the position is in relation to this measure from the Supreme Court, and he has written a number of times to the Attorney-General and also made representations to the Supreme Court in relation to finding out their position. The shadow attorney-general has received a letter now from the Chief Justice dated 8 November 2019. I would like to read that letter into Hansard. It is to the Hon. Kyam Maher MLC:

Dear Mr Maher

I refer to your letter to the Attorney-General dated 8 October 2019.

I am hopeful that the Attorney-General will shortly be in a position to provide a fair summary of the Judges' views to Parliament without the necessity to disclose our correspondence. Only if the Attorney-General does not do so will I give consideration to making a public statement about the Judges' views.

Yours sincerely

The Honourable Chris Kourakis

Chief Justice of South Australia

Copy to the Attorney-General

Clearly the Attorney-General has that letter from the Chief Justice, and clearly it is the Chief Justice's representation and belief that the Attorney-General will be making a statement to this parliament that reflects accurately what his position, and the position of the other judges of our courts, is in relation to her proposition.

I hope that it is a fair representation of what their position is, because clearly the Chief Justice has said that if that is not the case, if it is not a fair representation of the case, then he will be giving consideration to making a public statement, which would be quite unprecedented, I believe, in terms of making clear what the judges' views are in relation to what the executive's proposition to the parliament is in relation to establishing this matter.

I hope that we see that statement transpire in the Attorney-General's summing-up to the parliament in relation to that matter. Should the Attorney-General do that, we will want to confirm with the Chief Justice that the summary the Attorney-General provides is in fact an accurate representation of the judges' views and whether or not that means a separate public statement, as he has foreshadowed in that letter to the shadow attorney-general, is necessary.

There are many questions that remain unanswered from this proposal from the Attorney-General. We do not know how court of appeal judges will be selected. We do not know whether there will be fewer trial judges on the Supreme Court. We do not know where the Court of Appeal will be physically located. We do not know what additional resources will be provided to the Court of Appeal. We do not know how this proposal will improve the quality of judgements being made.

Could this proposal impact negatively on access to justice at a Supreme Court trial level? Are we a large enough jurisdiction to warrant this separate court of appeal? Will this proposal unnecessarily create a two-tiered system of Supreme Court judges? Will the court be able to attract the best Supreme Court trial judges? Who has requested that this court of appeal be established at all is still a mysterious question out of all of this.

I would appreciate if the Attorney-General in her summing-up at the committee stage could answer all those questions for the parliament, because they are pivotal pieces of information for us to know, that clearly have not been answered to this day. You only have to look at recent comments from the Chief Justice to the committee in the other place on budget and finance to see what a situation the courts are in under this government. Only a couple of weeks ago, we had a proposition in The Advertiser titled 'Judgment day: Chief Justice fires broadside over desperate lack of judges'. The article, an exclusive by Nigel Hunt, stated:

Justice is being undermined, and the state's highest court unacceptably burdened, by the Liberal Government's failure to fill two vacancies on the Supreme Court bench, according to our most senior judge. Chief Justice Chris Kourakis…has revealed Attorney-General Vickie Chapman has declined his 'repeated requests' to fill the two positions and this had reduced the capacity of the court as a result.

This was a spectacular intervention in terms of what the Supreme Court had to make clear to the Budget and Finance Committee. It was done by the Chief Justice in a letter to the secretary of the committee dated 27 September. Interestingly, it was in answer to some questions from the Hon. Terry Stephens—so, not even in relation to questions asked by the opposition. What the Chief Justice said in that letter should raise alarm bells for the administration of justice as it is currently being delivered by this government. The Chief Justice of the Supreme Court said:

The Honourable Justice Vanstone retired from this Court on 13 June 2019. Despite my repeated requests, the resulting vacancy in this Court has not been filled. On 26 July 2019, it was announced that Justice Hinton would become the Director of Public Prosecutions. From that time, it has not been possible, for obvious reasons, to list Justice Hinton to hear any other cases. Despite my repeated requests a permanent replacement for his seat on this Court has not been announced.

The decision not to make permanent appointments to fill those vacancies has effected a substantial, 16 percent, reduction in the capacity of the Court. It has placed an unacceptable burden on the remaining Judges of the Court. It undermines the proper administration of justice by this State's highest court.

The use of auxiliary judges is not an acceptable alternative to maintaining the proper complement of permanent judges required to undertake the underlying long-term case load of the Court. The proper role of Auxiliary Judges is to assist the Court in the event of:

short term peaks in the number of cases;

unusually long trials which disrupt the ordinary listing schedule;

conflicts which preclude all or most of the permanent judges;

a need to introduce special expertise or facilitate judicial exchanges.

At a meeting with the Attorney-General on 17 September 2019, I again expressed my concern that the Government had not yet made permanent appointments to replace Justices Vanstone and Hinton. The Attorney-General informed me that she believed that auxiliary judges could satisfactorily undertake what would otherwise be part of the ordinary caseload of permanent judges. I explained to the Attorney-General why they could not. I now repeat that explanation for this Committee.

There is a detailed explanation, which is now public through the Budget and Finance Committee, where the Chief Justice goes into great detail about why the Attorney-General's proposition is wrong, why the government's lack of ability to fill these justice appointments has caused significant detriment to the administration of justice in this state and why these appointments need to be filled immediately.

In this context, where concerns have been raised about what is going on in the courts at the moment, here we have the Attorney-General bringing forward a proposition to create a new court of appeal that would turn around the way our Supreme Court has operated since its inception. You only have to read that letter to see the existing concerns of the Chief Justice, let alone what additional concerns there might be following on from this proposal by the Attorney-General.

That letter outlines very concerning elements: the vacancy created by the retirement of Justice Vanstone has not been filled, the vacancy created by the appointment of Justice Hinton has not been filled and there is an issue where, even though Justice Hinton has not taken up his position, he is clearly in conflict with so many of the cases that may have an impact with the DPP and the position he is about to hold. He has not been able to be involved in cases even though he is still technically a member of the court. As such, they are down 16 per cent in their capacity, despite no reduction in their workload.

As an aside, I would also note that the correspondence from the Chief Justice to the Budget and Finance Committee attaches letters from the Chief Justice to the Attorney-General. In the circumstances under which we are debating this bill, i.e., that the Attorney-General has refused to release correspondence from the Chief Justice outlining the judges' position on the establishment of a court of appeal, that is remarkable. It is remarkable that those letters have been provided. It clearly indicates that this court is under significant strain because of the Attorney-General's refusal to replace those judges.

Returning to the substantive issue of this bill, the Attorney-General's refusal to replace those judges, combined with the establishment of a new court, may undermine the proper administration of justice. This is a particular concern because the Attorney-General refuses to advise what resources the court will be allocated or how many judges will be provided. With those words, I indicate again that Labor will not be supporting this measure. Clearly, there are already concerns about the administration of justice in the Supreme Court under this government and, clearly, we do not know the full information about the concerns that have been raised by the Supreme Court.

We are therefore in no position to support this measure if there are concerns that we have not been made aware of and that the Attorney-General is refusing to release. I look forward to the Attorney-General meeting the commitment, which has been made not directly by her but through the Chief Justice of the Supreme Court, that she will give a summary of the judges' positions to this parliament. I look forward to then seeking to clarify that matter with the Chief Justice to see whether that is an accurate portrayal of the Supreme Court's views and concerns.

We will also see how we can elaborate and get to the bottom of what those concerns are and how the Attorney-General believes that her proposal to establish this new court would address those concerns and not make the problem of the administration of justice worse. We have none other than the Supreme Court Chief Justice saying that we have problems with the administration of justice. We will see how they are going to be addressed in the Attorney-General's proposal.

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