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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-04-11 Daily Xml
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Supreme Court (Distribution of Business) Amendment Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (16:41): I move:

That this bill be now read a second time.

I rise to introduce the Supreme Court (Distribution of Business) Amendment Bill 2023. This bill is the product of a request from the Chief Justice, who has raised issues with the government regarding the inflexibility afforded in the Supreme Court Act 1935 in assigning work to members outside the division of the Supreme Court to which they are appointed.

Section 47 of the Supreme Court Act currently allows for the distribution of business through agreement between the Chief Justice of the Supreme Court and the President of the Court of Appeal. Specifically, section 47 allows for the assignment of a judge from one division of the Supreme Court to another for a period of time not exceeding 12 months. Agreement between the Chief Justice and the President is made on the basis that it is convenient for the purposes of the proper administration of the court. The relevant judge must also agree to the assignment.

Clause 3(1b) of the bill extends the circumstances in which a judge may be assigned to another division of the Supreme Court to also include the assignment to a specified proceeding. Accordingly, clause 3(1b) of the bill proposes that a judge may be assigned to another division either for a period of time, as is presently permitted, or for a specified proceeding, which is currently not specifically provided for. The basis and requirements upon which the assignment occurs remain unchanged.

Clause 3(1) of the bill specifically allows the Chief Justice to assign a judge of the Court of Appeal to the general division of the Supreme Court to preside over a particular proceeding. However, the Chief Justice must first be satisfied that the assignment is necessary due to the limited availability of judges in the general division to preside over the proceeding, in addition to the complexity of the specific proceeding.

Clause 3(1) of the bill also requires the Chief Justice to consult with the President of the Court of Appeal prior to assigning a judge from the Court of Appeal to the general division. The bill requires that this consultation occur in accordance with the protocol approved by the judges of the court at a council of judges. Where a judge of the Court of Appeal has capacity to preside over a particular matter in the general division, and the workload of the general division is such that no judge of the general division is available, a mechanism which allows for the Chief Justice to assign a judge from the Court of Appeal to that matter ought to be available.

The flexibility afforded by the bill is expected to lead to efficiencies in improved case flow management, which is a compelling reason to allow for this flexibility. I commend the bill to the chamber, and I seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Supreme Court Act 1935

3—Amendment of section 47—Distribution of business

This clause amends section 47 to allow greater flexibility in managing the distribution of business in the Court and in particular to allow for judges to be assigned from the Court of Appeal to the General Division, or vice versa, for the purposes of particular proceedings (rather than just for a set period) where the Chief Justice, the President of the Court of Appeal and the judge agree. In addition a new power is inserted for the Chief Justice (after consultation with the President of the Court of Appeal) to assign a judge in the Court of Appeal to hear and determine proceedings in the General Division where the proceedings are complex and there is limited availability of judges in the General Division.

Mr TEAGUE (Heysen) (16:45): What we have just heard from the minister is, more or less, synchronous with what the Attorney advised in another place on 18 May last year. I think it is particularly relevant to point that out in the present circumstances. It might become apparent as the debate ensues. I do indicate that I am the lead speaker for the opposition and I indicate that the opposition opposes the bill.

Perhaps to highlight now—because we have heard it in stereo—that the Attorney-General, in moving the second reading of this bill in another place on 18 May 2023, commenced his remarks precisely in the same way as the minister has just now, by indicating that the bill 'is the product of a request from the Chief Justice'. Beyond explaining what the machinery of the clauses is, and the balance of that short contribution, we are really left with what is a fairly compelling proposition that the bill comes to the parliament at the request of the Chief Justice.

One might start an approach to legislation of this kind with a disposition to say what the courts ask for in terms of the administration and management of the day-to-day operations of the courts, without more, the government might be inclined to facilitate. But I do highlight that in the almost a year that has passed since the Attorney made those remarks in another place, there is no greater rationale for the proposed changes than exactly that form of words and exactly that description as to the machinery of the bill and the changes that will be made.

I highlight that at the outset because, being a matter of the management of the day-to-day operation, in this case of the courts, and in this case particularly the Supreme Court and the Court of Appeal, it is incumbent upon members and incumbent upon this place and upon the parliament as the place of legislation to consider the circumstances in which the request is made, especially in circumstances where there is the passage of time involved, and take that opportunity to consider for itself and for ourselves just what exactly might be an evidentiary base for granting that request.

By framing it in those terms, I do not imply any particular reluctance on the part of the government in terms of bringing this bill to the house. As I have said, by reference to the two responsible second reading contributions that have been made now in two different places, I do not detect that there is a huge amount of enthusiastic zeal either. To the extent that there was a lack of enthusiastic zeal back in May 2023, there has not been some fresh source of inspiration that has attended the introduction and the second reading contribution of the minister in this place. And that, in these particular circumstances, tells a story.

What is the situation as it stands now, getting on towards mid-April 2024, nearly a year on? Certainly, it can be said that considerable time has passed since the bill was introduced in another place. I can tell the house that not only has a considerable amount of time passed but there has been a considerable ongoing focus on the circumstances of that request by a whole lot of interested parties who have been put on notice now for the better part of a year that that is something that is on the Chief Justice's mind.

So, what do we know as a result of all of that? First of all, the government has been afforded plenty of time to go back to the court to identify and possibly to particularise any difficulties that are being experienced and to spell them out. I think that would be of assistance to the house. I understand that there are none that have been identified, none that inform the circumstances in which we now are seeing the bill come before this place.

We have just heard it from the minister, as we did from the Attorney nearly a year ago, that we have the request from the Chief Justice that this occur. All right, well, we can unpack that in a moment and see where that takes us. The Chief Justice was in the course of the debate in another place moved to write to the Attorney subsequent to the Attorney's contribution on the second reading in the Legislative Council. We have at least that as an indication, beyond what we have heard just now from the minister and, at the outset, from the Attorney-General.

Without wanting to labour the point, it really ought to be understood loud and clear that, where we have a situation in which legislation comes to the house at the specific request of the Chief Justice but, at that stage at least, without anything more, we have a whole lot of time that passes and the opportunity then for considerable thought and focus on the topic and, as it transpires, a fair amount of fairly detailed correspondence. Notwithstanding all of that, by the time the bill reaches this place, nearly a year later, there is nothing more that the government has to say about why it remains on track, beyond that original point that was made at the outset of the Attorney's contribution. It is a pretty serious set of circumstances. We have, as I say, the Chief Justice's letter that followed the introduction of the bill, and that gives us a bit more to go on, and I will come to it in a moment.

Coming back to where we stand today, we have the government continuing to press on with the bill. I say at this point that there are plenty of courses open to the government, including the obvious. It sits on the Notice Paper until the parliament might be prorogued, and that would involve a reset and all the rest of it. But there is no barrier or difficulty for the government to take its time in considering anything it needs to consider for itself in this regard and coming back to the house and then giving the house a bit more to go on than what another place was told just short of a year ago, that this was at the request of the Chief Justice.

I would just add that, as a matter of a few short weeks ago—but long enough—around the time I think I saw that the bill was on the Notice Paper and was coming along at some point soon, I made inquiry myself to the Attorney's office. I invited the Attorney's office to provide me with any information that had come to light either in the period of time since the other place considered the bill, or indeed prospectively, that might be providing grounds on which the government is acting on the Chief Justice's request. That is an open question, and I just indicate to the house that I have not had any substantive response. It is not that there has been a lack of interaction with the Attorney's office. I always take the opportunity to express my appreciation for the opportunity to ask such questions and to interact.

But I just make the point that I have made that point of curiosity apparent specifically to the Attorney's office. I have not gone so far as to protest further debate on the matter unless and until evidence is provided, and I certainly would not in the circumstances presume either to seek the Chief Justice's opinion directly or to have some facilitated briefing to the Chief Justice that is an obvious potential source of embarrassment. There is no criticism of either the Attorney or the Chief Justice in terms of the absence of such a direct interaction in relation to the way in which the bill has been couched.

I am here in very much the same setting as everyone else is, hearing now publicly stated for at least the second time in the course of the debate that this is a bill that comes to the house as—and I quote from both the Attorney and the minister now, in both places:

…a product of a request from the Chief Justice, who raised issues regarding the inflexibility afforded in the Supreme Court Act 1935 in assigning work to members outside of the division of the Supreme Court to which they are appointed.

So the question remains why is it imperative to impose this unusual impact on the Court of Appeal? I say to the house that it is an extraordinary step to remove the independence of the Court of Appeal in this way. In saying so, I am very conscious of the kind of wood for the trees argument. I mentioned at the beginning of these remarks that, even in the circumstances that I have described where the government over the course of nearly a year and in both places does not take the case to the house as rising any higher than that request, the fact of a request from the Chief Justice is, on its face, a compelling thing.

I am in the practice of commencing that part of the estimates hearings, for example, where the Chief Justice is present following the budget to answer questions in relation to the courts. Unlike in any other area, my questions in relation to the courts are generally limited to questions that go to whether or not the Chief Justice considers that there are adequate resources being provided for the independent operation of the courts as a whole, and it is a welcome response if the Chief Justice provides some sort of assurance in the affirmative. The point being that the courts of which the Chief Justice is in charge need to be independent in their operation, so the request is on the face of it a compelling one, but so is a step of this nature, and so soon, in terms of the time since the establishment of the Independent Court of Appeal, to take this step to remove its independence in this way.

To put it another way, if one has a keen eye towards the healthy establishment of the independent Court of Appeal that has so many benefits for the administration of justice and in the few short years that it has been in its operation has proved up in so many ways the benefits of having an independent court of appeal, where there is even a scintilla of difficulty that has been expressed about a change to those arrangements—and I can tell you, a lot more than a scintilla was expressed by the time the proposed change came to the notice of interested parties—then that is a cause for reticence in terms of changes that would, in this way, impact upon the independence of the Court of Appeal.

As things stand, it is my view that, while we can talk in this place about recent history and reflect upon that very specific and singular rationale for the bill having been introduced in another place and now brought here, what is imperative at this moment is that we go back and we ask the court: is this necessary and is this really still the court's view? I did not hear anything of that kind in the remarks of the minister just now.

Again, I do not mean to overemphasise any criticism in this regard—it is not for this purpose—but where the minister's second reading speech, the speech of the government in introducing the bill to the House of Assembly, is word for word the speech that the Attorney gave in another place nearly a year ago, then the question is all the more imperative because there is no evidence in what the government brings to the House of Assembly to say that anything of that kind has been done. So I say it is imperative to go back and ask the court: is this really necessary and is it still the court's view?

If there is an opportunity afforded by the short time in the course of this debate to do so, then I urge that that course be taken. Is it still the court's view and, if so, on what grounds? Because we have heard nothing about that from the government.

I might be going back to principles of debate and persuasion. It is the sort of thing I introduce to the primary school students who visit now frequently in this place. I tell them about the blood line on both sides of this chamber and I say to them, 'No need for your guns and knives and swords in this place. You should not be surprised you are required to leave those at the door because when you come in here you are coming into a place where it is the power of persuasion, the presentation of evidence and the force of your argument that wins the day, not how good you are at exacting violence on your opponent.'

In some ways, the reality is that a government that has resolved itself to introduce a bill has put a great big stamp of persuasion on it by virtue of the introduction. The fact that it makes its way to the second reading, and the fact that a minister stands up and provides remarks in support of it gives it a great big stamp of persuasion because it is backed by, for the time being, a majority that has confidence in the government.

That imperative point, about bringing to this place persuasive reasons for making what in this case would be really quite an extraordinary step in the circumstances of what we have heard from a whole variety of voices over the last several months, means that there is really an onus on the government to recite that request at this stage and to do otherwise nothing more than to repeat a summation of the machinery of what the bill does.

So I urge, even now: go back to the court, ask the court: is this necessary and is this the courts view? I would be grateful for the benefit of the response in that regard, and I am sure that will be of assistance to the parliament as a whole let alone the profession and South Australians who are following the debate. What do we know about where things stand in terms of the resources and personnel who are available and sitting in the Court of Appeal? Well, we know there is presently, as I understand, five sitting members. Justice Lovell is on full-time long service leave, and he is on his way to retiring next year. That leaves four members of the Court of Appeal.

My understanding is that the court is now operating at maximum capacity based on current available judicial personnel and that as a result, when I last consulted—and this now dates back; I did some attempt at diligence a couple of months ago now when this was on its way—at that stage we saw that there were listings out to September and October, and no doubt I would be assisted by advice in relation to where that is at now.

I would expect that we are now seeing listings out to the end of the year, and perhaps even into next year, so there is no wriggle room for the court at all as I am presently understanding the circumstances. The notion that is at the core of this bill, of providing for the removal of a judge from the Court of Appeal, as a matter of practical reality in anything like the recent past and the anticipated future, just makes no practical sense.

Again, I couch that in terms of my keen interest in any evidence that might be provided to me or the parliament, in turn to the contrary, and via the government, and that is a request that has been now outstanding for a long period of time.

Where there is no apparent case for the change and where there is actual concern that is expressed about the change and where that comes from creditable sources and from multiple sources, then one moves from that disposition to say at the outset that—and I might say it freely in the course of the debate, it is all on the record—if the Attorney-General brings a bill to the parliament that indicates something comes at the request of the Chief Justice and that is for the efficacy of the operation of the court, the disposition is to say that, if that is going to assist in the efficacy of the court, there is a substantial amount of expectation that of course that will be backed by evidence and of course that will be coming with the wholehearted support of the relevant members of those jurisdictions and so on.

Really, unlike in a whole lot of other circumstances, there is no call to enter into further correspondence about the matter and that basic disposition to facilitate what the courts require, both in that budget estimates sense to ensure that the court is appropriately resourced and also in the mechanical sense to ensure that the Chief Justice, if he is expressing requests for mechanical things, that, as a matter of principle, there is a fairly strong disposition towards acceding to them.

I have a fair amount of sympathy for the Attorney in terms of proceeding in that way and it is at least in part the way I would anticipate proceeding myself and indeed the way that I was at first approaching my response to the request as it has been introduced. But in the absence of evidence that might be able to meet expressions of concern, the analysis needs to change and one goes back to fundamentals about what is actually necessarily at the core of the independent Court of Appeal, which, as I say, was established only a few short years ago.

I think before traversing the foundations of the Court of Appeal in this case and looking at the interaction with the court at that time and, in particular, the interaction between the then attorney-general and the Chief Justice at the time of the establishment of the court, I have referred to there having been interaction and correspondence and views expressed in a variety of ways following the introduction of the bill by the Attorney in another place in May last year. I will refer to these perhaps primarily and just mention them for the moment with a view to coming back to them in due course.

First, the letter from the Law Society to the Attorney-General dated 5 July 2023 is a relatively considered letter by the then President of the Law Society, James Marsh, and it takes the opportunity to enclose with it the letter of the President of the Law Society, as she then was, Amy Nikolovski back on 4 October 2019 at the time of the establishment of the Court of Appeal.

We have a considered response of the Law Society as early as early July, bearing in mind that the bill was introduced and read a second time in another place in May, so within a couple of months. While we are on the Law Society, we then have a further letter from the Law Society dated 25 August 2023, and by now the Law Society referring to both the 5 July letter and the letter to the Attorney from the South Australian Bar Association dated 17 August 2023, which had been provided to Mr Marsh at that point.

Then we have the letter of the South Australian Bar Association by its President, Marie Shaw KC, to the Attorney-General dated 17 August 2023. That, in turn, encloses an earlier letter from the Bar Association to members of the Legislative Council. I understand from Ms Shaw's letter dated 17 August that that letter to members of the Legislative Council was copied also to the Attorney. So the Attorney was on notice from the Bar Association by both the 5 July letter and then the letter addressed to the Attorney dated 17 August.

In any event, the 5 July letter was enclosed with the 17 August letter, as were a number of attachments, which are copies of letters from the Bar Association to the then Attorney-General, the Hon. Vickie Chapman MP, in 2019 in relation to the establishment of the Court of Appeal at that time and those letters dated 27 September 2019, from the then President of the Bar Association, Mark Hoffman QC, as he then was, and 2 October 2019, also to then Attorney-General, the Hon. Vickie Chapman MP, from Mark Hoffman QC, in his capacity as then President of the Bar Association.

I have adverted to the disposition that was adopted at the outset on introduction back in May 2023 and by that quick run-through identifying the relevant documents that have emanated from the Law Society on the one hand and the Bar Association on the other, it just demonstrated that through at least July and August 2023 there is considerable correspondence. I just summarise the effect of that for the moment. I will address the substance of it in a little more detail later.

That was in the course of the debate in the Legislative Council, let alone the time we get here, so I must illustrate that. Following the Attorney-General's second reading speech on 18 May 2023, the Hansard in the other place records that the debate was adjourned on that day. Then the debate continued through July and it was still being debated in the other place at the end of August 2023 and by that time fully in the context of communications expressing concern from both the Law Society and the Bar Association.

By then at least, all members, it appears, are on notice of perhaps a number of things, including that those particular bodies were protesting that as at May, when the bill was introduced, they had not been consulted, had not had the opportunity, therefore, to express the views that they would have expressed had the bill been brought to their attention beforehand. That is to provide in a fairly ample way the setting of both notice of concern and opportunity to prove up the case for change in the face of those concerns having been raised.

Before I leave this point, it would be incomplete to leave those communications hanging without referring to the unusual, if not extraordinary, circumstance that then followed, that the Attorney at the end of August, late in the debate in the other place, on 29 August of last year, came back to the other place. I will quote, because it is helpful in this context. The Attorney advised the members of the other place and thanked them for their contributions. We are very late in the debate. The Attorney then indicated:

Yesterday—

that means 28 August 2023—

I received correspondence from the Chief Justice of the Supreme Court that addresses some of the concerns that have been raised by honourable members in their reflections from the Bar Association or the Law Society.

Those members' contributions are on the public record, and it is not for me to editorialise. I respect those contributions and they are there, but so far as there were reflections from the Bar Association and the Law Society those are the matters of correspondence I would come back to as well in my contribution. The Attorney then goes on to say:

It might be worth at this juncture, before we go into committee, reading out that letter—

that is, the letter that the Attorney says he received from the Chief Justice on 28 August—

because I think it will be useful for the purposes of the debate. Yesterday, the Chief Justice wrote in relation to the Supreme Court (Distribution of Business) Amendment Bill…

And it follows. The Attorney, it appears, read the letter in full—and I might take the opportunity to do that at a convenient time—and then sought leave, and I understand that leave was granted to table the letter.

So it is there, well and truly on the public record and deployed in the debate by the Attorney. It is well that this house, therefore, give it some thoroughgoing consideration because, in addition to those short contributions from the Attorney, and now the minister just a few moments ago in this place, there is no case for the change that is made by the government that rises any higher than the request from the Chief Justice. So the Chief Justice's letter to the Attorney dated 28 August 2023, in these circumstances, looms large in the debate. I seek leave to continue my remarks.

Leave granted; debate adjourned.

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