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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-10-16 Daily Xml
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STATUTES AMENDMENT (COURTS EFFICIENCY REFORMS) BILL

Third Reading

Third reading.

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): I certify that this fair print is in accordance with the bill as agreed to in committee and reported with amendments.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (17:19): I move:

That the bill be recommitted to a committee of the whole council with respect to new clause 19B, insertion of new clause 19C, clause 20 and insertion of new clause 24A.

Committee Stage

Bill recommitted.

New clause 19B.

The Hon. S.G. WADE: By way of preface could I thank the government for facilitating what was previously agreed, which was that we would recommit the bill so that the fuller implications of the chief magistrate amendment could be considered. I reiterate that having considered the government's amendment, which appears in the consolidated bill as 19B inserting 6A, that the opposition does support the government's proposal but what our amendment addresses is the issue of a dual service, if you like—service in both the Magistrates Court and the District Court. Therefore, I move:

Clause 19B (as inserted) [clause 19B, inserted section 6A]—Delete subsection (3) of inserted section 6A and substitute:

(3) However—

(a) the Chief Magistrate may not perform the duties, or exercise the powers, of a Judge of the District Court of South Australia while the Chief Magistrate holds an appointment as Chief Magistrate; and

(b) the Chief Magistrate may—

(i) resign from the office of Chief Magistrate without simultaneously resigning from the office of Judge of the District Court of South Australia; or

(ii) resign from the office of Judge of the District Court of South Australia and from the office of the Chief Magistrate without simultaneously resigning from the office as a magistrate,

and such a resignation will not give rise to any right to pension, retirement leave or other similar benefit.

As I said, the opposition supports the thrust of the provision in 6A but we propose to replace subsection (3). This amendment builds on the government's proposal in acknowledging the proposed changes to make the chief magistrate a judge of the District Court. We also acknowledge the practical implications this has for the governance of the courts.

Contrary to the Attorney-General John Rau's press release of 25 June 2012, the government amendment does not 'bring South Australia in line with practice in New South Wales, Victoria and Queensland'. The Queensland Magistrates Act, in section 11(5), merely allows a District Court judge to be appointed as chief magistrate:

However, the Chief Magistrate may not perform the duties, or exercise the powers, of a District Court judge while the Chief Magistrate holds office as Chief Magistrate.

The New South Wales and Victorian acts are different again. The New South Wales act allows both jurisdictions to be exercised but unlike South Australia merely provides that being a District Court judge meets the qualifications to be appointed chief magistrate. The Victorian act provides the same remuneration and pension entitlements to the chief magistrate as a County Court judge but does not appear to provide for dual appointment.

In considering this legislation, we are particularly attracted to the Queensland model, the model which suggests that a District Court judge may not perform the duties of a District Court judge concurrently. We think that is particularly relevant in South Australia, given our unique governance. What I mean there is the existence of the Courts Administration Council. In exercising the duties of office, the Chief Magistrate sits on the State Courts Administration Council. The government amendment has the effect of making the Chief Magistrate a member of two distinct bodies that have representation on this council—the Magistrates Court and the District Court. At times, these two bodies may have competing interests.

The Law Society has specifically expressed concern about the government's amendment in this context. They are expressing concern about the impact on the allocation of administrative court resources and the risk of a conflict between the duty to the administration of the magistracy and their, now, interests in the efficacy of the District Court. The opposition shares the concerns of the Law Society and is proposing an amendment to address that issue.

What our amendment does is follow the Queensland precedent and seeks to clarify that, while the Chief Magistrate holds that role as a District Court judge, they should not sit as a District Court judge. In addition, we propose that, if the Chief Magistrate resigns, they should be able to do so while retaining their status as a District Court judge. This would provide the Chief Magistrate with additional security in an era of increased politicisation of the courts by government.

The government may argue that this would allow a Chief Magistrate to abandon their role as Chief Magistrate to become a District Court judge prematurely, perhaps even on their first day, but I would challenge the government that if they believe that a candidate is likely to do so, why would they appoint them as the Chief Magistrate? This amendment ensures the independence of the Chief Magistrate and also minimises potential conflicts of interest. I commend the amendment to the committee.

The Hon. G.E. GAGO: I stand to oppose this amendment: the government opposes this amendment. First, the amendment provides that the Chief Magistrate may not perform the duties of a District Court judge while still the Chief Magistrate. It is the government's intention that the bill will preserve the Chief Judge's responsibility for the administration of the District Court by allowing the Chief Magistrate to hear a matter in the District Court on the Chief Judge's request while remaining as Chief Magistrate. This could occur, for example, if other judges were conflicted and it would be a matter for the Chief Judge to determine whether the Chief Magistrate is required to sit in the District Court as a District Court judge in relation to a particular matter.

The amendment filed by the Hon. Stephen Wade will not allow such flexibility to occur. The real concern with this amendment, however, is that it will allow the Chief Magistrate to resign as Chief Magistrate without resigning as a District Court judge, and resign as a District Court judge without resigning as the Chief Magistrate. The government amendment is silent on this issue, preferring section 6(5) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988, which provides that a judicial officer who holds two or more concurrent appointments may resign from one appointment without resigning from the other with the approval of the Governor.

A person should not be able to accept an appointment as Chief Magistrate then immediately resign as Chief Magistrate to sit in the District Court other than with the approval of the Governor. This could leave the Magistrates Court without a Chief Magistrate for some period of time and also require the Chief Judge to manage another full-time judge, perhaps without available facilities, for a person to hear any District Court matters. It is for those reasons that the government opposes this amendment.

The Hon. S.G. WADE: In response to the government's comments, I would note that if judges in the District Court are conflicted, judges in the Supreme Court can serve in the District Court jurisdiction. In relation to the government's preference for a provision in an alternative act, which I cannot recall, if the committee is inclined towards this amendment, the government might be inclined to amend it further. The basic point that a chief magistrate should not serve in two jurisdictions concurrently we believe is well founded. It is based on precedent in Queensland.

I was interested that the government did not proffer any feedback from magistrates. I would proffer my feedback from magistrates. I have spoken to two senior magistrates on this matter. I will not mention their positions because that would identify them, and I did not indicate that I would be quoting them in the parliament. Both magistrates thought that my amendment was well founded.

One raised the point that his fellow magistrates would be very concerned if the government opposed this amendment because they actually have a huge respect for their jurisdiction. They have huge respect for the work that the Chief Magistrate does. They know that she does more than a full-time job as Chief Magistrate; why would the government expect her or one of her successors to take on additional responsibilities in another court?

As I said, another senior magistrate indicated strong support for the proposal, again because of the distinctiveness of the two jurisdictions. So, from the opposition's perspective, we believe that we have tested the water and we have not had opposition from the magistracy in relation to this amendment. We commend it to the committee.

The committee divided on the amendment:

AYES (10)
Bressington, A. Dawkins, J.S.L. Franks, T.A.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Stephens, T.J. Vincent, K.L.
Wade, S.G. (teller)
NOES (9)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Hood, D.G.E. Hunter, I.K.
Kandelaars, G.A. Wortley, R.P. Zollo, C.

Majority of 1 for the ayes.

New clause thus inserted.

New clause 19C.

The Hon. S.G. WADE: Mr Chairman, I am sorry that your first division did not have a more sweet outcome.

The CHAIR: I have got plenty of time. There are more divisions to come.

The Hon. S.G. WADE: I move:

New clause, inserted Part 6A—after inserted 19B insert:

19C—Amendment of section 9—Tenure of office.

Section (9)1)(c)—delete 'sixty five' and substitute: '70'

This amendment follows the government's proposed changes to make the Chief Magistrate a judge of the District Court. Under section 9 of the Magistrates Court Act 1991 a magistrate must retire at 65. There has been ongoing discrepancy between the compulsory retirement age of 70 for judicial officers in the District and Supreme courts and the compulsory retirement age of 65 for magistrates.

One of the effects of the government's amendment which received the tentative support of the council and which has now been confirmed as we have now moved on was to increase the retirement age of the Chief Magistrate to 70.

The government has already indicated during the Estimates Committee processes of the other place that it was looking at the retirement ages of magistrates, and that was also confirmed in the committee stage of this bill. Given that there is no good reason why there should be a difference between the general magistrates' age and that of the Chief Magistrate, it would be hard to argue against one standard retirement age for all judicial officers.

This is a straightforward amendment that seeks to standardise the retirement age for all judicial officers at 70. The Magistrates Association of South Australia has been consulted by the opposition about the amendment and is supportive of the change. Retirement ages for workers have steadily increased over time as quality of life has improved. The commonwealth government recently introduced a staged increase in workers' retirement reaching a retirement age of 67 years old on 1 July 2023.

It is plainly obvious that there are many people over the age of 65 who continue to make a significant contribution to their respective occupations and to public life, and I particularly acknowledge the contribution that the Hon. John Darley makes to this place. To restrict the opportunity of magistrates to do so effectively denies the state of a wealth of knowledge and experience.

To summarise, the amendment supports the retention of skills, knowledge and experience in our courts. It brings the retirement age of magistrates in line with retirement age of judicial officers in the superior courts and recognises that people over the age of 65 still have an enormous contribution to make.

The Hon. G.E. GAGO: The government rises to oppose the amendment. In principle the government does not oppose the increase; however, the government is already considering increasing the retirement age of magistrates in the context of a wider review of the Magistrates Act 1983. It is more appropriate to make the change where this and other proposals are dealt with as part of a package of amendments to the act rather than in isolation. The review has already had input from the Chief Justice, Chief Judge, Chief Magistrate and the Magistrates Association of South Australia. I have spoken to a number of minor parties and Independents, and I understand that we do not have the numbers to support opposing this, so the government will not divide on this amendment.

New clause inserted.

Clause 20.

The Hon. S.G. WADE: I move:

Page 7, line 29 [clause 20(1)]—Delete '$24,000' and substitute: '$25,000'

This amendment is largely consequential to the opposition's amendments to the small claims jurisdiction, which received widespread support from the community, the judiciary and, more importantly, this council. It was subsequently raised with us that for consistency's sake the minor statutory proceedings value should also be raised to $25,000. While the practical effects of this change is minute, it is a reasonable change that assists with the administration and communication of court processes. I commend the amendment to the council.

The Hon. G.E. GAGO: The government believes this is a consequential amendment.

The Hon. D.G.E. HOOD: Just for the record, we support the amendment.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Page 7—

Line 35 [clause 20(2)]—Delete '$25,000' and substitute: '$12,000'

Line 38 [clause 20(3)]—Delete '25,000' and substitute: '$12,000'

I will speak to all three amendments together, as they all relate to the same matter. Members will no doubt be aware that I supported the Hon. Stephen Wade's amendments to clause 20 when the bill was previously dealt with. I did so on the basis that I considered that the honourable member made some very valid points in relation to the need to increase the threshold, especially in view of the fact that it had remained at $6,000 since 1991. Having said that, and given the concern that has been raised by the government in relation to the jump from $6,000 to $25,000, I am proposing a middle ground of sorts in order to progress this bill.

The amendment would raise the threshold to $12,000 on the basis that the relevant provisions would be subject to a review after 12 months. It is intended that the review would consider the impact of the increased threshold on the Magistrates Court as well as the need for any further increase to the jurisdictional limit along the lines of what was proposed by the Hon. Stephen Wade.

The Hon. S.G. WADE: Mr Chairman, if I by your leave can address all three amendments by subject—but I know we are only addressing amendment Nos 1 and 2 formally—the Hon. John Darley's amendment proposes that we should not do anything and let the government think about it in a few years' time. The council has already decided that this government's reform agenda is too modest, and that we actually want to make it easier for people in South Australia to access justice. I do not think we should step back from that. I indicate on behalf of the opposition, even though this amendment was tabled at 3.27pm and we haven't had a party meeting since then, I am inclined to support amendment No. 3.

The review would be welcome and, if at the time the review is conducted, we find that there have been unintended consequences, the opposition would be very happy to consider amendments. To be frank, I would have been more attracted to a sunset clause on the opposition amendments but I certainly would urge the council, having put a stake in the ground for access to justice, that we should not cave in to the government's floodgate scenario.

The Hon. D.G.E. HOOD: Family First respects the right of the Hon. John Darley to change his position. I think there have been times in this chamber when all of us have perhaps, in reconsidering our position, done that from time to time. I do not believe I have ever done so with a formal amendment but, certainly, I think all of us have thought about our position in the future. So we respect the Hon. Mr Darley's opportunity and right, if you like, to change his position; however, we do not share his view. We remain committed to our original position which was to support the $25,000 threshold and that remains our position.

The Hon. A. BRESSINGTON: Same here. I am not inclined to change my original position on this and I think I agree with the comment of the Hon. Stephen Wade that, once we have put our stake in the ground in seeking justice for people out there—and if we have done that then we should have been sure about it when we did it—we should not be what I see as wishy-washy about what are and are not their rights, so I will not be supporting the Hon. John Darley's amendments.

The Hon. M. PARNELL: The Greens will be supporting these amendments. We supported the original government position which was to double the threshold from $6,000 to $12,000, and we did not support quadrupling it, so supporting these amendments is consistent with the view that we took earlier.

The Hon. G.E. GAGO: The government rises to support these amendments. The amendment changes the definition of a small claim, so a small claim is a claim for $12,000 or less, with a review of this jurisdictional limit to occur within 12 months of commencement. It is the government's view that this amendment is a good compromise between the government's original position of an increase of $12,000 and the opposition's position of an increase of $25,000.

The committee divided on the amendments:

AYES (9)
Darley, J.A. (teller) Finnigan, B.V. Franks, T.A.
Gago, G.E. Hunter, I.K. Kandelaars, G.A.
Parnell, M. Wortley, R.P. Zollo, C.
NOES (10)
Bressington, A. Brokenshire, R.L. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Stephens, T.J. Vincent, K.L.
Wade, S.G. (teller)


Majority of 1 for the noes.

Amendments thus negatived; clause as further amended carried.

New clause 24A

The Hon. J.A. DARLEY: I move:

Page 8, after line 31—After clause 24 insert:

24A—Review of certain amendments

(1) The Attorney-General must, as soon as practicable after the first anniversary of the commencement of section 20, conduct a review of the operation and impact of the amendments made to the Magistrates Court Act 1991 by that section.

(2) The Attorney-General must prepare a report based on the review and must, within 12 sitting days after the report is prepared, cause copies of the report to be laid before each House of Parliament.

The Hon. S.G. WADE: I may live to regret this, because we only got this amendment late, but on my reading of it, we welcome continuous improvement and a review. We will be supporting this amendment.

The Hon. G.E. GAGO: The government supports this amendment.

New clause inserted.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (17:54): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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