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

Second Reading

Adjourned debate on second reading.

(Continued from 11 April 2024.)

Mr TEAGUE (Heysen) (16:10): Perhaps given that a little over another month has passed, I might, before proceeding, deal with those matters that I introduced in my earlier remarks back on 11 April in the course of contributing to this debate and just address again what was really a central observation at that time.

Conveniently for members and others who are following the debate, my remarks on 11 April followed immediately after the contribution of the minister as he then was, the member for Cheltenham, in moving the second reading on behalf of the government, in circumstances where the Attorney in another place had moved the second reading of this bill, as I recall, back on 18 May of 2023, and in terms, somewhat uniquely, as plainly follows—and I just quote the Attorney for the sake of completeness, in May 2023, where he said, on moving that the bill be read a second time:

I introduce today to the chamber the Supreme Court (Distribution of Business) Amendment Bill. This bill is 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 the division of the Supreme Court to which they are appointed.

I think, as I observed a little under a year after that date (because we are coming up to almost exactly a year since then), when the minister introduced and moved the second reading in this place, again, somewhat unusually—and, as I said in the course of my contribution last time, I mean no particular criticism in terms of the repetition or recitation. But in the course of a year that had followed from the minister's introduction in the other place until the second reading was moved by the government in this place, the proposition rose no higher than precisely the same case for advancing it, and again I quote:

Again, I quote:

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.

I say that because there are all sorts of reasons why government pursues its agenda in this place. Much of what we have seen over the course of now a little more than two years since the last state election has somehow been characterised by members of the government opposite as fulfilling election commitments or otherwise justified by the available evidence of circumstance, other reasons for reform and so on. But what is core to the legislation that is brought to this place by the government is that there is some reason that is advanced by the government for adhering to that legislative agenda.

What we have seen now and over the course of almost exactly a year is a case for this bill rising no higher than a request from the Chief Justice in the terms that I have described and the terms that have been presented now in another place and here. As I did a month ago, and I again do so standing here now, I request the government to provide any kind of indication as to the case for the necessity for this change or indeed some reason that justifies proceeding with this legislation that rises higher than simply the request of the Chief Justice.

Again, I put this into context on the previous occasion as well. I might refer in a moment to an informative paper that was written by a member of the Victorian Bar and I think delivered a little over a decade ago. I will find it in a moment. I want to do justice to Tin Bunjevac for the work that he did. The paper, in any event, as I understand it, was delivered about 10 years ago. It was published in the UNSW Law Journal in 2017, going to the matter of the progression of reform over a period of time from a form of courts administration that was characterised by individual judges.

Essentially, it would proceed in a broadly consensus model to a form of judicial bureaucracy and the way in which judicial counsels have emerged and the changing nature of judicial accountability in court administration. By that paper, some salient observations are made about the line that is drawn when we are considering the separation of powers between the courts' accountability to the direction of government on the one hand and judicial independence on the other.

It is well in this regard to reflect on the context of development that has occurred within the living memory of many members in this place, if not in the time of their parliamentary service. Chief Justice Len King, who served in that role after serving in this place and then as a puisne judge of the Supreme Court, served as chief justice of the South Australian Supreme Court from 1978 until 1995, including in particular the oversight of the introduction of the Courts Administration Authority, which has now been serving the state for therefore in the order of three decades.

Chief Justice King, for whom now one of this house's electoral districts is named, was an eminent jurist as is well known. He was in particular an eminent courts administrator. So it was well, indeed, that he was there to drive the establishment of the Courts Administration Authority and to see that significant step in terms of the transition that has been described in the paper.

It might be observed that it is certainly not every politician's core strength nor is it every judge's core strength to deal with matters of administration of the courts. It is not something that is to be taken for granted. Suffice to say that if there is one shining legacy of Chief Justice Len King's glittering career, it is his services as chief justice at a time of the introduction of the Courts Administration Authority. I will refer to the paper to provide some context for this. It is observed in relation to reference to a minister's reserved powers in court administration, and I quote:

…there are many legitimate reasons justifying ongoing involvement of the Minister in court administration. The first concerns the ability of the government to effectively deliver a suite of justice sector services to the public that are deeply intertwined with the work of courts, such as public prosecutions, corrections, legal aid and so on. Secondly, as Chief Justice Leonard King pointed out, the government also has a legitimate interest in the judiciary's decisions about issues such as the locations, openings and closings of courthouses. Thirdly, the electorate will always regard the administration of justice in the courts as an essential public service, which means that the government may be held to be politically responsible for the proper operations of the courts, regardless of who is formally in control of court administration. Arguably then, when politically sensitive incidents involving the courts do arise, the Minister will be under enormous political pressure to respond—

and then the author quotes—

'in order to appease the government and the electorate'—

end quote, and he there footnotes—

This may be the case even if the judicial council is statutorily responsible for the operation of the courts, because, as [the learned authors] explain in the context of the Irish Courts Service, 'the line of a Minister's political responsibility to Parliament has different dynamics than that of the much slower and less direct line of responsibility that the Courts Service has with Parliament.

It goes on—and this might just be a further salient reference:

…there is an emerging trend in jurisdictions that have recently established a service-oriented judicial council of entrusting a range of residual court administration functions to the Minister: One important exception to this trend is South Australia, where the relationship between the Attorney-General and the Judicial Council appears to be tilted conclusively towards the judiciary.

According to former Chief Justice King, the Attorney-General is principally responsible for presenting the judiciary's budget to Parliament, and is also entitled to receive adequate information about the operations of the courts. Apart from that, however, he or she has no control over decisions of the Court Administration Authority and consequently no direct responsibility for them. This position is clearly reflected in the South Australian legislation, which explicitly provides that a member of the council or the CEO must attend a Parliamentary Estimates Committee to answer questions about the courts' operations and expenditure of money.

I pause there to indicate, as I do at the outset of the estimates process when it comes to the courts, that it is my practice in asking questions in this regard to inquire almost exclusively as to the adequacy of funding that is provided to the courts in order to exercise their independent functions, and in the presence ordinarily of the Chief Justice and, on occasion, a delegate of the Chief Justice—one of the members of the court—that assurance might be given, and some consideration of that might ensue. But that is very much the nature of the inquiry in terms of that parliamentary estimates committee process with which members will be familiar. The author goes on:

While at first this may be seen to be inconsistent with the idea of judicial independence, the Chief Justice explains that he would be attending the estimates hearings in his administrative capacity as the Chairman of the Judicial Council.

It might be observed that, in contrast to South Australia, there are a number of jurisdictions around the world for which the minister's responsibility for certain threshold questions impacting on the operations of the courts have not been removed, and for a variety of reasons.

The author cites the example of Ireland, where legislation implicitly recognises that government should have a say in the administrative affairs of the court system by requiring the Irish Courts Service to obtain the minister's approval of its strategic plans. There are also a number of other matters that are referred to there.

By way of further example, there are the circumstances in Sweden and the Netherlands, where the government and the minister respectively are also entitled to issue broad general directions to the Judicial Council with a view to ensuring proper operations of the courts, as long as the Judicial Council considers them to be compatible with the principle of judicial independence.

That is provided for in the Judiciary Organisation Act 1827 in the Netherlands at article 93, and also Domstolsverket, the Swedish National Courts Association, in terms of the way that is dealt with in their respective legislation. The author goes on to make a number of other comparative observations about the ongoing connection and the relevant threshold between the extent of the minister's role on the one hand and the role of the courts on the other.

Just to cite that, in England, the subject of observation, the minister's ongoing involvement in courts administration is found in England and Wales, where control over court administration is shared between the judiciary and the executive government in accordance with a formal partnership agreement. The policy rationale behind the Lord Chancellor's continuing role in court administration is partly based on implicit recognition that the courts are, by their nature, a shared responsibility between judiciary and government.

I am not in a position to be tabling documents, and I do not propose to read the balance of the learned author's article into the record—certainly, I expect it is not the only such analysis. However, I just refer to that specific part of that analysis, because it makes a useful observation about the role of the Courts Administration Authority and, in particular, observations relating to Chief Justice Len King in this jurisdiction.

It is undoubtedly the case that a line is drawn between the independence of the court on the one hand and the provision of adequate funding for those activities that are necessary in the public interest and the disposition of the courts' business. Here, I say it again, we have a bill that has been brought to another place by the responsible minister, citing as the reason for doing so the request of the Chief Justice. As I said earlier in this contribution, not quite a year later the member for Cheltenham, in bringing the bill into this place in his then capacity, cited precisely the same rationale.

So I was moved, as I had been prior to its introduction and at that time a month ago, to urge the government to provide or to seek, if the government decided that it was in fact no more adherent to the request than simply to abide by it, to provide to the house—provide to me so that I could provide to the house or so that it could—any kind of justification beyond that bare request, because absent some evidence of an administrative requirement it is appropriate for the house to consider whether or not a change of this nature is in fact a change that is in keeping with those proper duties of the government and the parliament in legislating for the administration of justice in the state.

Again, just to be clear, I have asked for those questions to be passed on if necessary. I have asked for any kind of information or data to be provided. I do not suggest that there is any particular stonewalling or lack of diligence—far from it. There is no lack of interaction either, I might say, in terms of my ability to interact with the minister and the minister's office. I can only conclude, as I continue these remarks a month on from the moment of making some introductory remarks back in April, that there is no such justifying data.

I do not want to attempt to make the case, but I might infer from the absence of any data that might necessitate, or even if not necessitate, flag the future desirability of such a change that it is actually the absence of any need that somehow gives this change the character of a pre-emptive strike, a sort of, 'Well, there's nothing that's remotely requiring the change for the time being, and we want to keep it that way.'

Legislation, if not always, then certainly predominantly, is made with a view to improvement and in circumstances where there is some indication of a perceived need. I made these observations in some ways in commencing my remarks that the evidence on the other side, that is, the evidence for continuing with the current arrangements the subject of the legislation as it currently is in section 47, is pretty strong. As I understand it—and I do not understand this to have changed; if the government is in a position to tell me that any of this has moved on since I last referred to it, I welcome the opportunity for update—there are five sitting members, and Justice of Appeal Lovell remains on full-time long service leave and is leaving next year, so four active members.

The Court of Appeal is functioning and at its maximum capacity such that a month ago listings were out to very late this year at the earliest. Again, if there is an update to that I would welcome it; it might be into next year by now. It is not as though you have the Court of Appeal, with justices all sitting idly by waiting for matters to come up into their jurisdiction, and they would sort of like a peaceful life or something. If anything, they are short on active brethren and they are flat out—and I will refer to it again in a minute—because we are curiously retaining the current structure for good measure as well. I will get to it in a minute.

The idea, therefore, of imposing a new arrangement that will provide for no longer an agreement between the Court of Appeal and the general division—that is, between the president and the Chief Justice—but rather a directive model, really seems wholly inapposite right now and for the foreseeable future. That is just looking at it one way. The removing of a judge from the Court of Appeal would appear to make no practical sense. If there is a case for that directive to be imposed, then let's hear it.

In terms of the capacity of the court and the general division, I just make an observation for the moment, and I will perhaps come back to it a little more and unpack the history of the establishment of the courts. It is not an existential debate; we are assured of that. It is also no secret that the Chief Justice was not a proponent of the establishment of the Court of Appeal in the first place. There is no secret about that. It is not an existential debate.

The point that is made in the context of the Chief Justice's general ambivalence, if not opposition to the establishment of the Court of Appeal in the first place, was to make only a couple of requests in relation to things that ought to be considered at the time that the court is established, one of which involved extending the capacity of the general division to be able to hear more matters, matters that might ordinarily be heard by the District Court. I respect and applaud that observation. I will come to it in a minute because the amendment refers to both capacity and to a notion of complexity for the first time.

There is no doubt that those members of the court, those justices of the Supreme Court in the general division, are of the highest calibre in the state's judiciary. Any sensible proposal to extend the practical work of the court or plenary jurisdiction, the proposal to extend the practical work of the general division of the Supreme Court, generally speaking, I will welcome. This is one of only very few specific observations of chief justices, as I understand it, in the course of the process leading towards the establishment of the Court of Appeal.

The point is that we have established a Court of Appeal, which has, for very deliberate reasons, appointed that small number of justices of appeal with a view to those justices of appeal specialising in the hearing and determination of appeals in order to improve the quality of outcomes, the consistency of outcomes, by way of having that specialist appellate jurisdiction in South Australia. That is not a controversial proposition. It is an important reform, albeit one established only in recent years, one that is now well established in terms of the process of reform in the course of the court's history.

We have the benefit in this state of the history of the establishment of the Courts Administration Authority under the authority of Chief Justice Len King, as he was. I did not know the Hon. Len King but I am certainly familiar with his judgements. If you ever wanted a succinct statement of authority on any particular matter, then you would certainly go to the reasons of Chief Justice King.

In particular, in terms of his capacity and skill as a courts administrator, he was a particularly appropriate person to lead the way in terms of the establishment of the Courts Administration Authority, as he did back in the early nineties. We could go back a bit further and talk about the establishment of the District Court, but relevantly, the Supreme Court operating in terms of a general division and then the reform establishing the standalone Court of Appeal, they all ought to be proudly recognised as key steps of reform and key components of both judicial administration and the disposition of the business of the courts over now many decades.

This is all the more reason why at this juncture, if there is a bill brought to this place that we are told is not brought here for reasons associated with the government looking to reform, re-establish, revisit the Courts Administration Authority and legislation associated with it, or indeed substantive matters of legislation going to the structure and nature of the courts, then it is well that the parliament have a close look at what evidence is provided. As I stand here, now many weeks after first commencing consideration of this bill in this place, there is none provided.

At risk of doing the government a disservice, it would be remiss of me not to refer to the fact that there is a little more than just what we have heard in those second reading contributions in another place and here, because there is also an explanation of clauses that has been incorporated into the Hansard. I refer to that, because there is only the one operative clause. The amendment that is altering section 47, in terms of the structure of what we will address in a moment, is said to, and I quote:

…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.

In terms of my remarks, by way of context I have addressed this point about particularly the problem associated with moving judges from the Court of Appeal to meet needs that are caused by the limited availability of judges in the general division, and I would like to see some indication of necessity in that regard; and then we have this reference to complexity. I might say that I would have thought that all of those judges who are members of the general division are not, as it were, distinguished by their relative capacity to hear and determine matters according to their complexity, so I am a bit at a loss as to what work that particular distinction has to make.

There are a couple of clues there in that passage that I have just read that is said to provide an explanation. The first is, if one reads it, I would not charge the explainer as it were with having asserted that the so-called greater flexibility that is attended by the amendment extends to the addition of the new power. Just to unpack that, the operative clause amends section 47 to allow greater flexibility in the management of the distribution of business of the court, as I have said, in circumstances where all three agree—that is, the president, the Chief Justice and the relevant judge.

That is what section 47 provides for already, so in a way I am left somewhat curious as to what greater flexibility is afforded by providing for an arrangement where all three agree because we have that now. It might be put that we have a slightly different explanation of it, but we have that in terms now. I just want to flag that mutuality in this respect is something that I wholeheartedly endorse in that, in circumstances where you have conceivably the capacity for judges to go from one division to another, mutuality ought to be emphasised rather than the opposite, as a matter of principle, in my view.

Importantly, the explanation of clauses does not apply that test or that descriptor of greater flexibility to the additional power. In fact, there is no justification that is provided for the addition of the new power. I will just read it again:

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.

That is quite a good explanation—it could not be clearer. You have a so-called amendment to allow greater flexibility on the one hand—that is where there is consensus between all three—and then on the other hand, you now seem to have this sort of unilateral imposition of an additional new power that is inserted for the Chief Justice to assign a judge in the Court of Appeal to the general division.

It is that change which, it would appear, is coming at the request of the Chief Justice and without more. So it is eminently possible for there to be a proper engagement in this regard. Again, perhaps to be really clear, in the short time in which I had the honour to serve in terms of exercising those powers and functions, I enjoyed a very clear and frequent line of communication with the Chief Justice on a whole variety of matters, as I am sure the Attorney continues to do now.

In the course of these remarks, I have referred in a number of different ways—and I hope about as emphatically as I can muster—my request to the government for some indication of grounds upon which this request is made and I do so in circumstances where someone might say, 'Why don't you go and ask the Chief Justice yourself?' It is not appropriate for me to do so in my present capacity and I do not seek to, in that sense, be a source of embarrassment for the Chief Justice in the slightest.

But I do ask that the government might make those inquiries so that the government might come back to this place and say, 'We as a government are convinced by the following evidence,' and it might be that the Chief Justice is best placed to assist the government in terms of the provision of any such evidence.

We do have some direct engagement in the debate from the Chief Justice that the Attorney in another place has referred to and in fact read onto the record. I have made some preliminary reference to it as well. I might turn to it in a moment. We are certainly in no doubt: we do not have to take the Attorney in another place's word for it or indeed the minister in this place's word for it that it has come at the request of the Chief Justice, because we have a letter from the Chief Justice that makes it very clear that this is a change that the Chief Justice desires.

But the explanation of clauses, just to stay with that for a moment, really does beg two questions. Firstly, if it is to allow flexibility, then for whom, exactly? If it is not for all parties concerned—perhaps to some extent the judge who is the subject of the request might be the one who is perhaps to some extent on the receiving end of a request to do different duties, but otherwise, flexibility for whom? Surely, there is a need for mutuality in terms of any claimed additional flexibility.

Secondly, one is left to ask: if there is to be this additional power that is inserted, then what is the need to keep a form of the old consensus provision? They are both there described in the explanation of clauses. Again, the core point comes back to: where is the demonstrated need? So, to understand what section 47(1) currently provides—again, a fair amount of thought was put into this in the circumstances of the establishment of the Court of Appeal—it provides as follows:

(1) If—

(a) the Chief Justice and the President agree that—

(i) the Court of Appeal needs an acting judge and that a judge, or acting judge, in the General Division could be available to act as a judge in the Court of Appeal for a suitable period; or

(ii) the General Division needs an acting judge and that the President or another judge, or acting judge, in the Court of Appeal could be available to act as a judge in the General Division for a suitable period; and

(b) the particular judge or acting judge agrees to undertake such acting duties,

the Chief Justice may, by instrument in writing, authorise the judge to undertake such acting duties for a period specified in the instrument of appointment.

There might be a small point made about the additional flexibility that is supposed to be accorded by the change—and I will get to the change in a moment—because the provision at the moment provides for the appointment for a particular period of time. One might look at such things from the point of view of the seriousness of the appointment itself—that is, the responsibility that is placed upon the individual judicial officer—rather than look at it through the prism of some sort of question of where the relevant directive power might lie.

It is a provision that is cast very much in terms that are substantive in that they are permitting the appointment. Sure, it is cast in terms of that being done for a period of time, but the substantive matter is the appointment in circumstances where that is a matter of mutuality. Importantly, not only mutuality between the Chief Justice and the president but also mutuality in terms of the possibility for there to be an appointment from the general division to the Court of Appeal and vice versa.

So along comes the amendment—and I will perhaps deal with the greater flexibility part of it first, because I am not extraordinarily impressed by the greater flexibility part. I think there is a kind of change in the structure that might be described as providing for greater flexibility. But we have now got a considerably more thoroughgoing replacement for section 47(1). The explanation of clauses does it in the reverse order from the way in which it is provided for in the replacement subsections, so I will perhaps deal with it in the order of the explanation.

In terms of retaining the consensus provision, new subsection (1b) refers to the additional power above in (1) and (1a), and then retains what will be now familiar:

…if—

(a) the Chief Justice and the President agree that it is convenient for the purpose of the proper administration of the Court—

(i) that a judge or acting judge in the General Division act as a judge in the Court of Appeal; or

(ii) that a judge or acting judge in the Court of Appeal act as a judge in the General Division; and

(b) the particular judge or acting judge agrees to undertake such acting duties,

the Chief Justice may, by instrument in writing, authorise the judge to undertake such acting duties for a specified proceeding or for a period specified in the instrument of appointment.

There is the flexibility. That is what seems to be the additional flexibility, but it is a consensus-driven arrangement, and it seems to me that the distinction between what is there in section 47(1), as it currently stands in terms of the period of time, versus the proceeding or the period of time, is purely a matter of convenience. I do not see anybody making some case. You have established the consensus for a particular complex case. You have got the judge seized of that case and you have anticipated that it is going to take a period of time and it goes longer; well, you are just going to extend the time. It would be extraordinary to contemplate that somehow 'my time is up', the wheels just now grind to a halt and the judge goes up in a puff of smoke, Cinderella style. You get to midnight and the whole show just transforms itself.

No, the practical result will be that, if more time is required in those circumstances, then more time will be provided and, fairly obviously, in the particular context of that proceeding. It is all very well to provide for the instrument in writing to authorise the judge to undertake acting duties for a specified proceeding. You have got auxiliary justice appointments for very much analogous purposes.

I would have thought that there may be other ranges of tasks that might answer this point about a period being specified an instrument of appointment that go well beyond simply one key specified proceeding. But the point is, as we know, with the case load of courts the difficulty of assigning judges is one that is often characterised by having to deal with a particular long-running case that is going to clearly take up the capacity of an individual judicial officer for an extended period of time. But it is the proceeding rather than the period of time that is going to govern the practical necessity.

So, we have a provision that then makes it explicit that you can make those acting duties operate for a specified proceeding. Whereas before, the instrument that was specifically authorised, which is the subject of 47(1) presently, refers to a period being specified in the instrument of appointment. I do not know. Unless there has been a practice of doing this in pretty conservative terms that allow an abundant amount of time when such arrangements have been made, I would be surprised if there is not the capacity under the present arrangements for a fresh instrument to be made where any period specified in an originating instrument was not proved to be inadequate.

Certainly there is no sense in which, as I understand it, anyone is making a case for the necessity for these provisions on those grounds. If they are, then I would be very glad to know about it. That I think is the flexibility that is referred to in the explanation of clauses, or the greater flexibility in the managing of the distribution of the business. Again, I stress I limited that reference to this part, that is to what would be subsection (1b), because it is the only part to which this so-called greater flexibility is said to apply, and then we get to the addition of the new power.

The addition of the new power is not said to by itself allow greater flexibility. Rather, it is described really just in bare terms. It is an additional new power that is inserted for the chief justice to assign a judge and, expressly, 'after consultation with the President of the Court of Appeal', the point being there is no requirement for mutuality and there is no claim to flexibility. Rather, the relevant reference points are a stipulation that the proceedings are complex and there is a 'limited availability of judges in the general division'. So, there is a fair bit to then consider.

Again, I stress that this, on the face of it, looks like something that is expressed in fairly short terms, but there is a fair bit going on. I have been at pains to provide some context in terms of the recent history in terms of the establishment of the Court of Appeal and the Courts Administration Authority. I certainly refer to the important role of the Chief Justice in all of those matters.

We then have at that part of the clause 3 amendment, which I am not going to stand here and—but for that, and it is not too late, you could do away with all the rest and just stick with (1b), and what we would have is a claimed provision allowing greater flexibility. I would concede that, on the face of it, yes, a provision to appoint a judge either way for a proceeding or for a period of time might be said to provide greater flexibility than a provision that applies only to the making of an instrument that assigns that judge for a particular time. I suggest that that is about as close to a moot point as you can get. Call it greater flexibility if you like—I am not here to argue about that.

The bare addition of this new power is rather more startling, and all the more so in the absence of grounds provided for it by the government, in the absence of any particular data that might go anywhere near justifying it from any other source, in circumstances where we know the Court of Appeal has a full book—and then some—and against a background of circumstances in which the Court of Appeal has been established and running now for some years.

That range of circumstances really—as I was at pains to say a little over a month ago in commencing these remarks, and I say this is almost antique at this point—in the context of a debate that had at the outset—and it is all on the record. Go back to May 2023, the context of a debate that is properly met on the face of it, with a disposition to say that if this is a simple matter of the better management of courts administration, uncontroversially so, and while on the face of it is the addition of a bare power that really changes the nature of the interaction between those responsible presiding members in the way in which the members of the court then participate in arriving at a consensus, if that was wholly uncontroversial then even if it rose that high then one might, in the circumstances I have described, be unsurprised to see that met by a parliament that had a fairly clear disposition towards saying, 'Okay, then, there is no explanation rising higher than the addition of new power.'

It looks a bit startling on the face of it but, you know, wood for the trees. This is what we are told, and if that is what everyone wants—and all the usual feedback seems to be in line with that—then, surprised as one might be, the disposition might be to say, 'Alright; no cause for the usual interrogation of such a unilateral or bare addition of power.'

Of course, as we have seen, as emerged fairly quickly once the proposal came to the attention of the wider universe—by that I mean the profession, let alone members of the parliament and so on, and I do acknowledge the debate in another place—particularly the attention of the profession, one moves from a disposition of, 'Alright, we won't regard the addition of this sort of additional bare power as anything more than that and will look to facilitate without asking too much, if anything, what the government is presenting.' Well and good then.

However, the minute that there is, in those circumstances—special circumstances as they are—any indication of disquiet, then it is incumbent on all of us to say, 'Alright, let's have a closer look at what's actually going on.' So we do; 'Let's have a look at what this additional new power being inserted for the Chief Justice to assign a judge in the Court of Appeal to hear and determine proceedings in the general division amounts to.'

So we do away with all the section 41 provision, which was largely replicated by what is now described as the greater flexibility provisions, and we add, at the outset of the section, this new power, which provides that if the Chief Justice is satisfied that by reason of—and it's a 'both', an 'and'—the complexity of a specific proceeding and the limited availability of judges of the general division, it is necessary to assign a judge in the Court of Appeal to hear the proceeding:

the Chief Justice may, after consultation with the President of the Court of Appeal, by instrument in writing, assign and authorise a judge in the Court of Appeal to hear and determine the proceeding.

There are two things about that. One is that is has become unilateral, and two is that it is one way only.

Again, I am not arguing for some sort of mutuality as a salve to this unilateralism that has been introduced, but in the circumstances of what I have described as my understanding of the Court of Appeal's present case load the provision is really very much focused on drawing from the resources of the Court of Appeal—there are not very many judges there.

In circumstances where the complexity of a specified proceeding justifies it (whatever that means) and there is limited availability of judges in the general division, I am conceiving of circumstances in which there is a long trial to be undertaken in the general division and the judges of the general division are either otherwise occupied with long trials of their own or it is desirable to have some capacity for judges to be available for other matters as they might arise.

That is what I am anticipating, but it does not say the length, it says the complexity, 'the complexity of a specified proceeding'. Again, I do not know what work that has to do. I suppose complexity implies length to some extent, but not necessarily, and there is no suggestion—it is not even remotely any sort of consideration—that somehow judges of the general division are not up to it in the same way as judges of the Court of Appeal.

It has to be somehow directed towards something that is going to take up a fair amount of time in a block for an individual judge and is going to draw upon, therefore, the resources of the general division in circumstances where there is a limited availability of judges in the general division —again, whatever that means. You then have this unilateral right of the Chief Justice to direct traffic, having presumably formed a view as to both of those components.

I hasten to add here that, as I have all the way through, there remains this sort of reference to the necessity for consultation with the President of the Court of Appeal and (1a) spells that out a bit more, because it refers to the consultation between the Chief Justice and the President of the Court of Appeal being conducted in accordance with a protocol that is approved by the judges at a council of judges that is held in accordance with requirements of the act.

I understand that such a protocol has been developed. I have seen the protocol and that is all well and good. No-one is suggesting that somehow they are incapable of meeting and consulting and developing protocols and all of the above. That sort of machinery is well within the capacity of a judge of the court. If they are required to go ahead and adopt such things, then that is well and good.

References to consultation are all well and good as well, but what we have at the end of the day, at the end of the process, is, as the explanation of clauses provides, not for greater flexibility—that is what we see in the mutuality provision—but just there on its own at the end of the day is the insertion of a unilateral power of the Chief Justice to direct traffic in terms of the removal of a justice of appeal into the general division.

So, it is what it is. It's new. It moves away from what section 47(1) is all about as it presently stands. Section 47(1) was not there post the establishment of the Court of Appeal. You might be left with some sort of slavish rigidity that says, 'We've got the general division, we've got the Court of Appeal. There is a set of unusual circumstances going. We could benefit from there being movement by the other.' That is the reason why we have 47(1) as it stands, based on mutuality, providing for capacity for that change, but reflecting the fact that that is a significant exercise of power and, as it presently is described, providing for an instrument that provides for that appointment for a period of time. As I say, I am not here to cavil with (1b). It is just curious that any form of provision, leaving aside the vice versa part of it, is still there; you can draw on one or the other.

I have referred to far from the absence of disquiet let alone any expression of enthusiastic endorsement of this request, including from the government in both this and another place. It is hardly a situation about which we have heard anybody speaking up for exactly what is to be achieved by the insertion of this additional power. Indeed, the explanation of clauses does not even rise so high as to claim the benefit of providing greater flexibility as a result of it; that is limited to (1b). Far from hearing some sort of enthusiasm for the change, what we have heard from is both within this place, and really more importantly in many ways, because it goes to starting us off on this inquiry, from the profession, and we have heard also from the Chief Justice in terms of his letter to the Attorney perhaps three or four months since the debate in another place.

So what did they say? Before I get to the Chief Justice's letter to the Attorney-General, dated 28 August last year, I might just refer briefly to the Law Society's contribution, before making some observations about the Bar Association's view of all of this. The Law Society, by its then president James Marsh, wrote to the Attorney by a short letter dated 25 August 2023 reiterating contributions being made over the course of the debate. It serves to provide the following observation after referring to previous correspondence in July, and earlier that month, also made available to the Attorney.

There is some urgency to the letter at this point because the Law Society is indicating its understanding that there is further consideration to be coming and the Law Society could not put it more plainly, and I quote:

The position remains that there is little information about any inefficiencies in case-flow management that the amendment is intended to address.

In addition, the letter from the Bar Association records that its research shows that the President of the Court of Appeal in other jurisdictions is not removed from a decision that a Court of Appeal judge be required to perform general division duties or from the converse decision. Making South Australia consistent with other jurisdictions was a factor put forward in support of the Supreme Court (Court of Appeal) Amendment Bill 2019 and caution should be exercised before passing amendments which put South Australia out of step. In the circumstances, the society retains the concerns about the proposed amendments expressed. He refers to that earlier letter. I might go to that in a moment. Reference has been made to the Bar Association, so I will not leave them out of it.

Again, just to be clear, you see there a sincere expression of concern in relation to a desire for evidence for improvement, change, imposition of unilateral powers and to say, 'Alright, here we all are. We have not so very long ago established the Court of Appeal.' There are a whole lot of principles attendant to that, including with respect to this question of mutuality when it comes to the assigning of duties and, as Mr Marsh puts it, the position remains there is little information about any inefficiencies in case load management that the amendment is intended to address.

That is many months into the debate in another place and it is not quite a year ago and still I would say that observation characterises the state of play as we stand here in mid-May 2024. Again, as I did in April this year, a bit over a month ago, if there is something that is responsive to that request, let alone mine, then let's hear it.

What does the Bar Association have to say? It is engaged in the debate and I might say in its usual thoughtful, thoroughgoing, authoritative and insightful way. I just refer to a couple of letters from the President of the Bar Association. The President of the Bar Association, Marie Shaw KC, writes to the Attorney-General by letter dated 17 August 2023.

The president there refers to some implied regret, I suppose, that the bill, while it was in another place, had been stood over in part so that members could consider the views expressed by the two legal peak bodies: the Law Society and the Bar Association. The president there laments that since that letter—this is the middle of last year—there has not been consultation with the South Australian Bar Association by the Attorney. I might start to think that I am convincing myself about this sort of request, but here it is again in writing from a year ago, and I quote:

No data, episode or example has been brought to our attention where the current arrangements in the Act have led to inefficiencies or affected case flow management.

These are not bodies that are prone to running obtuse arguments for the sake of it, nor are they in the practice of—

Mr Odenwalder: Like some other people.

The ACTING SPEAKER (Mr Brown): Order! The member will be heard in silence.

Mr TEAGUE: I am sorry, Mr Acting Speaker, I am not inclined to respond to interjections but I actually did not hear the interjection, so I am not in a position to—

The ACTING SPEAKER (Mr Brown): Firstly, it is disorderly to respond to interjections, and, secondly, please do not let them interrupt your train of thought.

Mr TEAGUE: I am grateful, as ever, for your steadfast protection, Mr Acting Speaker. What we see on the face of those two letters is, alright, they are written within about a week of each other and some might say, 'Hang on, they have been talking to each other. They have worded each other up on what the key concern might be,' or something. Well, let me just assure members that we are talking about pretty ferociously independently minded professionals in the case of the Law Society and its leadership, and the Bar Association and its leadership.

The fact that we see in pretty much like terms this sort of persistent reference to the absence of any information about inefficiencies in case flow management that the amendments intended to address, in the words of the President of the Law Society on the one hand and, from the Bar Association on the other hand, an observation, 'No data, episode or example has been brought to our attention where the current arrangements in the act have led to inefficiencies or affected case flow management.'

So it is not just me saying this in April 2024 or indeed now, in May 2024—or in a whole variety of other ways, formally and informally over the course of the last year while this particular proposal has been under consideration one way or another—but those are serious observations made by two independent bodies, both keenly conscious of their responsibilities to the administration of justice in this state. The common observation at that time is inhabited by this observation about the absence of really any rationale by reference to data or episode or information about inefficiencies, and so on, and there has been no answer that I am aware of. I might flag that if it is capable of being in the least bit surprising, there is a bit of a clue as to the sorts of things I might be interested in interrogating in the course of the committee.

If there are answers, it would be contrary to standing orders but if someone wants to come and hand me some sort of information that says, 'No, there was a brilliant and thoroughgoing answer provided to answer that charge of the Law Society and that almost parallel charge of the Bar Association, and more or less at that time,' then fantastic—put it in my hands and on we go.

I talked about the sort of overview of the purpose of this place that I aim to impart to the young children who come here and visit from primary schools and how, as I said on the last occasion, you leave your guns and knives at the door when you come in here because this is a place that is about the power of persuasion and not about the capacity to deploy violence against your opponent, or something of that nature. We have the blood line here to demonstrate that for us daily.

So if someone wants to come along and persuade me that what the Bar Association and the Law Society put in the most straightforward terms nearly a year ago is amenable of a straightforward answer, then come and tell me about it. You do not need to answer me directly; answer them. To the best of my knowledge, there is no such answer.

In the context of the debate and perhaps in the context of those two—and they are not the only two letters written to the Attorney in the course of the debate—we see then a letter that the Attorney saw fit to read into the record and I think, in line with the processes of the other place, to table so we have it on the public record in its entirety. I think it was tabled on 29 August, a letter dated 28 August from the Chief Justice to the Attorney-General.

I do not want to characterise that as being somehow responsive to those letters—it is a letter that stands on its own—but it is coming after those letters, and I will address it in a moment. I only hesitated to describe it as responsive in that any such correspondence is entirely capable of standing on its own, and I do not want to detract from it in those terms. Certainly, the Chief Justice, by the letter, adverts to, indeed, refers to the debate and refers to the correspondence or part of it in writing to the Attorney.

The contents of the letter are important not only for any response to those observations that might be contained within it but also because, as it turns out, the government does not appear to be all that enamoured or adherent to any kind of case for proceeding with this bill. It sort of serves as about the high watermark of any supposed justification for the bill, so it therefore ought to be the subject of relatively close analysis. I will just stay with the Bar Association's letter for a moment before doing so, because the President of the Bar Association goes further to say:

SABA has since conducted its own research into comparable provisions in New South Wales, Western Australia, Queensland and Victoria, all of which have an Independent Court of Appeal. We can tell you that either by reference to those provisions or existing conventions in those jurisdictions, the President of the Court of Appeal is not removed from a decision that a member of the Court of Appeal be required to perform General Division duties. Likewise, the same can be said in respect of the appointment of a General Division Judge to the Court of Appeal in an acting capacity.

That goes to the mutuality point—not removed. The president goes on:

The agreement of the President is an essential requirement for the distribution of business and cannot and should not be removed.

Nothing has been brought to SABA's attention that detracts from the proper and appropriate requirements that are encapsulated in the existing section 47 of the Supreme Court Act. The proposed amendment has potential to undermine the operation and integrity of the Court of Appeal.

In these circumstances, SABA does not support this Bill for it has a genuine capacity to detract from the independence of the Court of Appeal.

Frankly, that ought to be enough. I turn to another special aspect of what we are dealing with here. We recently dealt with the second-hand motor vehicles legislation, some reforms there, and I take by way of analogy that it came in response to, chiefly, submissions from industry via the Motor Trade Association. We know that the RAA had a decent amount of input into various aspects of it. That is all capable of interrogation. One can seek out all of the various interested parties in terms of what is essentially consumer protection legislation.

This sort of legislation that is before us is special in the ways that I have described. In circumstances where there is uniquely an incapacity, there are uniquely real limits that are placed on the proper interrogation of the merits of a change of this nature, there is a clear bias towards saying, 'Alright, we will allow what might facilitate better practice with a fairly limited degree of close scrutiny.' But when you have the Bar Association of South Australia not just saying, 'This has not come to our attention properly,' or, 'Tell us more about it,' those references to data and efficiencies and all the rest of it, but making an observation—this is not a body that is prone to idle flourishes. I repeat:

The proposed amendment has potential to undermine the operation and integrity of the Court of Appeal…SABA does not support this Bill for it has a genuine capacity to detract from the independence of the Court of Appeal.

As I said, in the circumstances of legislation of this kind, that ought to be enough to put the brakes on it and to go back and come back around with something that passes muster to the extent that there is not such a fundamental expression of disquiet contained in the correspondence and representations made by those two leading professional bodies in South Australia.

In the circumstances, and observing the time of the day, at this point and without wanting to leave members, and certainly not the Chief Justice, with any sense of skating over what was to follow later, in August 2023—I will come back to that when I have a chance—I seek leave to continue my remarks.

Leave granted; debate adjourned.

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