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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-02-07 Daily Xml
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Statutes Amendment (Attorney-General's Portfolio) (No 2) Bill

Second Reading

The Hon. N.F. COOK (Hurtle Vale—Minister for Human Services) (11:43): I move:

That this bill be now read a second time.

From time to time an Attorney-General’s portfolio bill is required to rectify minor errors, omissions and other deficiencies identified in legislation committed to the Attorney-General. Given the minor or technical nature of these amendments it is often more efficient to deal with such matters in a single omnibus bill rather than in a separate amendment bill for each act.

This bill makes amendments to two acts within the Attorney-General’s portfolio, being the Judicial Conduct Commissioner Act 2015 and the Youth Court Act 1993, to address issues which have been identified by the Judicial Conduct Commissioner and the Judge of the Youth Court.

Turning to the substance of the bill, part 2 of the bill makes two separate amendments to the Judicial Conduct Commissioner Act. Firstly, clause 3 of the bill inserts new subsection 11(4) into the Judicial Conduct Commissioner Act. The amendment provides that delegation by the commissioner of a function or power because of a pecuniary or personal interest that conflicts, or may conflict, with the commissioner's duties does not constitute taking action in relation to the matter that is the subject of the delegation. The commissioner has requested that this amendment be made to ensure that complaints can be delegated in a timely and effective manner, noting that a similar delegation provision applies to the Legal Profession Conduct Commissioner under section 77(4) of the Legal Practitioners Act 1981.

Secondly, an amendment is made to section 12 of the Judicial Conduct Commissioner Act to clarify that the commissioner cannot receive a complaint from a person who has been declared to be a vexatious litigant by the Supreme Court exercising its inherent jurisdiction. Section 12(2) of the Judicial Conduct Commissioner Act currently provides the commissioner cannot receive a complaint from a person who has been declared as a vexatious litigant pursuant to an order made by the Supreme Court under section 39 of the Supreme Court Act 1935.

However, it is unclear whether this prohibition would extend to include persons who have been declared as a vexatious litigant by virtue of the Supreme Court exercising its inherent jurisdiction. For the avoidance of doubt, the amendment clarifies that vexatious litigants cannot make a complaint under the Judicial Conduct Commissioner Act, regardless of whether they have been declared to be a vexatious litigant by virtue of an order of the court or under its inherent jurisdiction.

Part 3 of the bill makes amendments to the Youth Court Act to allow for the judge of the Youth Court to delegate a judicial function conferred on them under the Youth Court Act, or other act, to a judge of the District Court, including a person who has been appointed to act in the office of judge of the District Court on an auxiliary basis.

Section 22(2)(b)(i) of the Youth Court Act provides that an appeal against an interlocutory judgement lies to the judge of the Youth Court. Prior to 1 January 2017, the Youth Court Act provided for multiple judges of the Youth Court. However, since 1 January 2017 there has only been a single judge of the Youth Court. Accordingly, all appeals from interlocutory judgements must be heard by the judge of the Youth Court.

There is currently no power in the Youth Court Act for the judge of the Youth Court to appoint an auxiliary judge or to delegate their judicial functions to a judge of the District Court. As a result, the judge of the Youth Court has been required to hear all appeals from interlocutory judgements, including proceedings in which they have had prior involvement and where there may otherwise be a reasonable apprehension of bias.

To address this issue, the bill inserts new subsections 10(7a), 10(7b) and 10(7c) to allow for the judge of the Youth Court to delegate their judicial functions to a judge of the District Court, including a person appointed to that office on an auxiliary basis. This will allow for a judge of the District Court, including an auxiliary judge, to hear and determine appeals pursuant to section 22(2)(b)(i) of the Youth Court Act in circumstances where the judge of the Youth Court may otherwise have a potential or actual conflict of interest.

That concludes the measures that are the subject of this bill. While the bill contains a relatively small number of amendments, it addresses important issues to ensure that our justice system continues to work efficiently and effectively for our community. I commend the bill to the chamber and I seek leave to insert the explanation of clauses in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Judicial Conduct Commissioner Act 2015

3—Amendment of section 11—Delegation

A new subsection is inserted to provide that delegation by the Judicial Conduct Commissioner of a function or power because of a pecuniary or other personal interest that conflicts or may conflict with the Commissioner's duties does not constitute taking action in relation to the matter the subject of the delegation.

4—Amendment of section 12—Making of complaints

The class of persons who may not make a complaint under the Act is broadened to include persons prohibited from instituting proceedings by the Supreme Court under its inherent jurisdiction.

Part 3—Amendment of Youth Court Act 1993

5—Amendment of section 10—Court's principal judicial officer

Provision is made for the Judge of the Court to delegate a judicial function conferred on the Judge of the Court under the Youth Court Act 1993 or another Act to a Judge of the District Court (including a person appointed under the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 to act in the office of Judge of the District Court on an auxiliary basis).

Mr TEAGUE (Heysen) (11:49): I rise to indicate the opposition's support and to indicate that I am the lead speaker for the opposition. I commend the bill to the house, and so do I commend the Attorney's work in making what have been rightly described as administrative amendments in relation to the Judicial Conduct Commissioner Act and, secondly, in relation to the capacity of the judge of the Youth Court to make practical delegations.

I note that the minister has read into Hansard the contents of the Attorney's speech. I endorse those remarks and do not have anything to add to them, other than to perhaps indicate—I do not know if I misheard, but there is some discrepancy between the reference to the capacity of the judge of the Youth Court to hear and determine appeals pursuant to section 22(2)(a)(i) or (b)(i), I think as the minister might have indicated. I do not have either in front of me, so that is something that might be picked up by the Hansard in due course.

These measures are, as I have indicated, substantive but uncontroversial. I commend the hasty passage of this bill to the house.

Ms STINSON (Badcoe) (11:51): I rise to speak on the Statutes Amendment (Attorney-General's Portfolio)(No. 2) Bill 2022. From time to time we have these omnibus bills and, given the technical nature of these amendments, sometimes we put them all together in one bill, and that is exactly what we are talking about today. This bill, No. 2, amends two acts: the Judicial Conduct Commissioner Act of 2015 and the Youth Court Act of 1993. The amendments in this bill are generally of a minor nature and are aimed at improving the efficiency of our justice system.

Can I thank the shadow attorney-general for his contribution and, of course, those opposite for their support for this bill. It is probably not the sexiest one that will cross our house this week, but it is an important one in terms of addressing and going to some very important bills and efficiencies that are needed in our justice system.

I would like to thank the Judicial Conduct Commissioner, Michael Boylan KC, and the Judge of the Youth Court, Her Honour Penny Eldridge, who have brought these matters to the government's attention and allowed the government to put this bill together and put it before the house today. I would also like to thank the Attorney-General and his industrious staff, as well as those officers in the Attorney-General's Department, for the work that they have done on this and on an earlier omnibus bill in making sure that these very technical points are catered to so that we are in a position to be able to consider these matters in the parliament today. I commend their work.

As we heard earlier from the member for Hurtle Vale, this goes to two particular acts, the Judicial Conduct Commissioner Act and, separately, the Youth Court Act. I might just spend a moment talking about the relevance of those acts and some of the changes that are contained in this omnibus bill in relation to those acts. I hope that there will be enough time—I am confident that there will be—to speak about some matters pertaining to the Youth Court and some of the victim-centred measures that the government is engaging in that go to our young people: the protection of our young people and also how we address young people who are offenders as well as victims.

Part 2 of this bill makes two separate amendments to the Judicial Conduct Commissioner (JCC) Act to address various issues which have been raised by the commissioner. Clause 3 of the bill inserts a new section into the JCC Act to remove the requirement for the JCC to seek written authorisation from the relevant minister—that is the Attorney-General in this case—according to the Public Sector (Honesty and Accountability) Act before delegating a function or power under that act to another person due to an actual or potential conflict of interest. Essentially, we are talking about the delegation of powers in relation to conflicts.

The JCC Act provides that the commissioner is a senior official within the meaning of the PSHA Act and, accordingly, ordinarily requires the JCC to disclose to the relevant minister in writing the nature of any pecuniary interest or any personal interest which conflicts, or may conflict, with his or her official duties before taking any further action.

The JCC has asked that an amendment be made to remove the requirement for him or her to seek prior written authorisation before delegating a complaint. Obviously, this is a matter of straightforward efficiency, ensuring that we do not have red tape involved when we should be prioritising the smooth delivery of judicial services to our community. However, it is important of course that we do have some strong provisions in terms of legal profession conduct.

Under the new section, the commissioner will be able to delegate complaints without having to notify the Attorney-General. This amendment will assist to reduce the administrative burden on that office and also improve efficiency when dealing with complaints where there is a need for the Judicial Conduct Commissioner to delegate the complaint to another decision-maker.

It is probably worth noting that it is not envisaged that there would be a large number of these instances arising, but it is really important for public confidence that, when a conflict does arise, or even the perception of a conflict, we have this mechanism in place and that that mechanism is as smooth and efficient as possible to make sure not only that we have the smooth running of the court but also that the public has confidence and can actually see that conflicts are being dealt with and dealt with appropriately.

Clause 4 of the bill makes a separate amendment to section 12(2) of the JCC Act to clarify that the commissioner cannot receive complaints from a person who has been declared a vexatious litigant by the Supreme Court. Having had many, many years experience as a court reporter, sifting through the court lists day and night to try to find that little nugget of a story, I have to say there are some names that pop up again and again both in our Magistrates Court and District Court in particular. Those same names very occasionally do end up being the subject of an order to declare such a person a vexatious litigant.

It is incredibly rare in our justice system for a declaration of vexatious litigant to, firstly, be sought but also then be issued. Although a layperson looking at the court list might often think that there maybe should be a few more of these applications made, certainly the court takes the view that the justice system is there for people, that people have a right to use it and that it is only in the most extreme circumstances that the court system and, by extension, we as a community would declare someone as vexatious.

There are some quite serious ramifications if you are declared as a vexatious litigant in that it essentially robs you of your right, or removes your right, to be able to take court action. That is an important thing. It is really important for every one of us to know that, if we feel that an injustice has been done to us or others, we are able to utilise the court system and assert our rights and achieve remedies through the court system.

However, there are a small number of people who, unfortunately, from time to time really go beyond the bounds of what the system is set up to achieve and, I think, pervert those rights that are provided to all of us to utilise the court system to seek redress or remedy. In those cases, that is why we have this vexatious litigant legislation and why we do see it used, though, as I said, in extremely rare situations.

However, what has been pointed out by the Judicial Conduct Commissioner is that there is a discrepancy between that legislation and this particular act. The Supreme Court may make orders declaring a person a vexatious litigant to manage the deleterious effect of proceedings on other persons, drawing people into such litigation, and prevent the squandering of the court's limited resources. Such orders can be made under the Supreme Court Act 1935.

Section 12(2) of the JCC Act currently provides that a person who has been declared a vexatious litigant pursuant to an order made under the Supreme Court Act may not make a complaint under the JCC Act, but there appears to be no similar mechanism that would prohibit a person from making a complaint where the Supreme Court has declared the person to be a vexatious litigant by exercising its inherent jurisdiction. As such, in circumstances where the Supreme Court exercises its inherent jurisdiction, it appears that the JCC would be bound to consider the complaint. As I have just outlined, obviously that is inconsistent with the approach that has been taken in other acts.

Why anyone would want to spend excessive amounts of time and money going through our legal system, well in excess of what they might need in order to assert their rights, is perplexing. It is a mystery to many of us, but as I said, there are a small number of people who do sometimes take things a bit too far. That obviously has an impact on the efficiency of the justice system and also the rights of others to be able to efficiently and effectively access our justice system, not to mention those who may be the subject or the target of the legal action that is being sought.

A long leash is given to people, but in the circumstances where someone has been declared a vexatious litigant, it is important that we take the same approach right across different pieces of legislation. So for the avoidance of doubt and for consistency with the intended operation of section 12(2) of the JCC Act, the bill clarifies that a person cannot make a complaint where they have been declared to be a vexatious litigant by the Supreme Court, whether by an order made under section 39 of the Supreme Court Act or by exercising its inherent jurisdiction. That is what this amendment is aimed at remedying.

I move on now to the Youth Court Act and the amendments that this omnibus bill makes to that act. Part 3 of the bill amends the Youth Court Act to allow for the Judge of the Youth Court to delegate their judicial functions and powers to a judge of the District Court so that the delegate judge can hear and determine appeals in circumstances where the Judge of the Youth Court has a potential or actual conflict of interest. In a way, this is traversing some of that conflict matter that I was discussing earlier.

Section 22(2)(a)(i) of the Youth Court Act provides that an appeal against an interlocutory judgement lies to the Judge of the Youth Court. Prior to 2017, the Youth Court Act provided for multiple judges of the Youth Court. There have been instances in the past when we have had multiple judges of the Youth Court, but since then there has only been a single Judge of the Youth Court, with the Youth Court otherwise being composed of magistrates—as if they are not busy enough. Accordingly, all appeals from the interlocutory judgements are heard by the Judge of the Youth Court. Currently, there is no power in the Youth Court Act for the Judge of the Youth Court to appoint an auxiliary judge or to delegate their judicial functions and powers to another judge of the Youth Court.

As a result, the Judge of the Youth Court has been required to hear all appeals from interlocutory judgements, including interlocutory proceedings in which she or he has had prior involvement, and that obviously poses a problem. In the absence of there being any power to appoint an auxiliary or to delegate, I understand that the Judge of the Youth Court has sought to rely upon the common law doctrine of necessity in order to hear these matters where there may otherwise be a reasonable apprehension of bias. If there had been a power of delegation, it would have been exercised to avoid that apprehension of bias.

Although this may not be something that vexes the court every single day, the current situation is rigid, and that lack of flexibility impedes the efficient running of the court and the ability of the judge of the Youth Court to make decisions that best suit the needs of the day in terms of attending to important cases.

Where there is an issue in terms of bias or conflict or perceived bias or conflict there should be easy, fast and efficient ways for a judge to be able to resolve it—referring a matter to a colleague who does not have such a bias or conflict or perception of bias or conflict—so that our courts run efficiently and lists can be dealt with as promptly as possible and also for those who are coming into the Youth Court, who are of course some of the most vulnerable people in our society, our youngest people in our society, who are often having their first contact with the judicial system, which is a frightening experience for anyone.

We should be doing all that we can, even with small measures such as this, to ensure that the court is given every possibility of running its lists and cases in the most efficient way that it can because at the end of the day it is not just about our legal professionals being able to manage their working day, at the heart of it of course are the lives of young people. We want to make sure that they are getting access to justice, whether they are a victim or whether they are an accused perpetrator, as quickly as possible, both for their own mental health and to make sure that they are dealt with as expeditiously and in as caring and respectful way as possible and also to give confidence to victims and family members who may have an interest in the life of either the accused perpetrator or the victim.

Although these things may seem a little removed, when talking about particular clauses and fairly rare circumstances of there being conflicts and biases to deal with, it is absolutely crucial that we all have faith in the justice system and what goes on in our Youth Court and also that the people who are dealing with the Youth Court and utilising it are given paramount consideration.

To address this issue that has been raised by the Youth Court judge, the bill now inserts a new subsection 10(7a), (7b) and (7c) into the Youth Court Act to allow for the judge of the Youth Court to delegate their judicial functions and powers to a judge of the District Court, including a person who has been appointed to act in the office of a judge at the District Court under the judicial administration act 1988. What this will do is it will enable a judge of the District Court, including an auxiliary judge, to hear an appeal pursuant to section 22 in circumstances where the judge of the Youth Court is otherwise unable to hear the appeal due to a potential or actual conflict of interest. As I said, it is not as though it never happens, but they are fairly rare circumstances in which that occurs. Of course, it is paramount that they are dealt with in a transparent way when those situations do arise.

With the time remaining, I thought I might address some of the matters that go to our young people and our Youth Court, both in terms of being offenders and also in terms of being victims. I think it is worth mentioning a very important piece of legislation that has taken place and that is around strengthening Carly's Law and increasing penalties on a range of child sex offences. I have to say that, in my time as a court reporter, which was some decade or so, it was absolutely heartbreaking every day to be going through our court lists and seeing the incredible number of sex offences on our Magistrates, District and Supreme Court lists. I honestly feel that the average member of the public has no concept of the avalanche of cases that go through our courts every day in relation to sex offending. A large proportion of those is sex offending against children. It is a terrible thing to think about and a crime that absolutely rips people apart, sometimes for their entire lives.

I do not think that people who have not worked in the judicial system or in public office such as ours have much concept of the volume of historic cases but also more recent cases. Interestingly, it generally takes on average 18 years for a child victim of a sexual offence to verbalise it to another person, to actually say to someone else, 'This happened to me as a child.' That, in part, explains why we see so many historic cases on our court lists, because if it is taking 18 years for a person to be able to say out loud a crime that was committed against them as a child, then obviously it takes years after that if that person chooses to exercise their rights through the criminal or even through the civil justice system.

I am encouraged by Carly's Law, which obviously increases penalties for child sex offences, including sexual intercourse with a child aged 14 to 16, and that is increased to 15; indecent assault on a child under 14; producing, possessing or disseminating child sex dolls, and I acknowledge the work of the Hon. Ms Bonaros in the other place in relation to that matter in particular; and also producing or disseminating child exploitation material, which equally are a huge amount of cases that go before our courts.

I commend this bill to the house and I commend all those who are working to stamp out this terrible abuse against our children.

Mr ODENWALDER (Elizabeth) (12:11): I rise to make a very brief contribution to the second reading of this bill. I congratulate the member for Badcoe on finally getting to have her say on this bill. She has been champing at the bit all morning to speak on this bill and I am glad she finally got the chance.

Before I go to the bill, I want to make some general observations about what we do in this place and the nature of the legislation we have to deal with. There are various levels and some may be seen as more important than others, but they are really of the same level. There are the big ticket items that we do from time to time and I will get to those in a minute. There is what you might call medium-level new legislation that we do and then, of course, there is what we are doing today with this bill and the previous bill we discussed, which is tidying up.

It is treating legislation as a garden. You have laws. Like the member for Light's lawn, for instance. The member for Light's lawn does not look after itself. You have to revisit the lawn from time to time. You have to mow it, you have to fertilise it, and that is what we are doing with these types of bills. A lot of the time we do traverse what you might call big ticket items.

Without wanting to pre-empt anything that is going to happen in the other place later on this week, I want to congratulate the Attorney-General on bringing the bill to provide a First Nations Voice to this parliament and to this state. As I said, I do not want to pre-empt anything he has to say about it, but I think this is a massive moment in the history of this state. I hope this parliament will be seen very much as leaders in the national debate that is going to go on over the next couple of months. I want to commend the Attorney-General for that and I urge all members to support that bill when it eventually comes.

That, of course, builds on some other less big ticket items such as strengthening the Nunga Courts, which was done under this Attorney-General and building on some work done by previous governments. The legislation that was brought to this place provided that those Nunga Courts, which have been in operation for a while, were legislated to have a formal and recognised place in our justice system.

We know, as is often observed, First Nations Aboriginal people are criminally—if you will excuse the term—over-represented in our criminal justice system, in our prisons and in our court lists. Anything we can do to minimise that and reduce recidivism amongst the First Nations community, to provide them with a structure whereby they can influence both the courts, through the Nunga Court process, and also the parliament, in the bills we bring into this place, is to be commended.

I want to say in passing that I commend the work of the former Attorney-General, who sits opposite us, and his predecessor, the former member for Bragg. Without wanting to breach the standing orders too much, I want to acknowledge, as I am not sure others have, that he has brought measures very similar to the previous bill to this place before. I am not sure if other speakers mentioned that, but I commend him for that work and that is indicative of the bipartisan commitment to attending the lawn of the law, and I commend him for that.

In the time left available to me I want to go over some of the other things achieved by the Attorney-General and achieved by this parliament and brought to this place by the Attorney-General. One was very important, namely, the election commitment about the new offence of concealing or interfering with human remains. It blows my mind that this was not legislated before—it was something of an oversight, I think. That law was based on circumstances where the intention was to prevent the discovery of remains, to destroy evidence or to conceal the commission of an offence. It also inserted another more general offence of knowingly defiling or mutilating human remains, and again it beggars belief that that was not already legislated in the first place.

Another area of law that has been enacted in recent times is one particularly close to my heart, and that is the monitoring of the movements of bushfire offenders during bushfire season. I understand that this is probably not a law that will be used excessively, will not be used very much, but it is intended to target those people who the police are already aware of and are already the subject of Operation Nomad attention during bushfire seasons.

I assume some things are still the same, and I know that during COVID the SES helped out with this particular task. It is the task of the police to monitor known offenders and to take account of where known offenders are at various times, particularly during high-risk fire days, or geographically where fires have been known to break out, and to make sure those known offenders are not offending.

This new law now gives them the power, if all the other criteria are met, for them to monitor these people electronically, and this obviously is good in and of itself that we know where these people are during bushfire season, but also it frees up the police to do their other tasks during a bushfire season rather than spend a lot of human energy going around house to house checking that these people are home and not lighting fires.

I look forward to more legislation in this place from the Attorney-General. I think he is doing a remarkable job. I also recognise, as I did before, the general bipartisan approach to a lot of these things. We have our debates of course, and the shadow attorney-general is nothing if not thorough. I look forward to more legislation that strengthens our legal system, and I commend the bill to the house.

The Hon. N.F. COOK (Hurtle Vale—Minister for Human Services) (12:18): I confirm as well for the member for Heysen that we will ensure that the record is correct across both houses. The clause is 22(2)(b)(i), and I thank him very much for pointing that out. I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. N.F. COOK (Hurtle Vale—Minister for Human Services) (12:19): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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