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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (ATTORNEY-GENERAL'S PORTFOLIO) (NO. 2) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 April 2013.)

The Hon. S.G. WADE (15:19): The fact that we are debating this bill today is quite extraordinary because, as members will be aware, it was only received by this house yesterday. The opposition is willing to expedite consideration out of respect for the Chief Judge, His Honour Terry Worthington, but I do not think that it would be appropriate to proceed without indicating that the government has not acted fairly in this house.

The issue that is precipitating the urgent consideration is the provision in relation to the acting chief judge clause. That clause was not in the original bill, so let us be clear. The opposition was given the courtesy of being advised that the amendment was coming on Thursday 4 April, we were provided with a copy of the amendments on Monday 8 April, and I understand they were filed on the same day, but there was no mention of the fact that those amendments would mean that the bill itself would need to pass all stages this week.

So, we have a very important clause tabled on Monday, put into the bill on Tuesday, and the whole bill (including that clause) is going through the Legislative Council on Thursday. The bill itself is not, on its face, challenging. I appreciate that, at times, amendments need to come forward at short notice, but it would have been helpful to have been advised at an early stage that not only were the amendments coming forward but that the whole bill would need to be expedited.

I start in that context in my comments in relation to the provision of the acting chief judge. We are advised that the provision in relation to the process for appointing an acting chief judge is to enshrine the current convention around the appointment of an acting chief judge should the Chief Judge step aside or be unavailable. We are advised that the Chief Judge and the Chief Justice have asked for this change to ensure there is no ambiguity in determining who is able to exercise that power and authority. Obviously, ambiguity in positions such as this is to be avoided, and the opposition supports that element.

I turn to other provisions of the act. There is an amendment to the Strata Titles Act 1988 and the Community Titles Act 1996 to provide that the articles of a statutory corporation must not prevent an occupier of a unit who has a disability (as defined in the Equal Opportunity Act) from keeping an assistance animal or from keeping a therapeutic animal (as defined in the Equal Opportunity Act) that has been certified by a person's general practitioner as being required to assist that person as a consequence of their disability.

I must admit that this is one of the clauses that I noticed first because at the time I was considering this bill we were considering the residential tenancies bill, and the Hon. Kelly Vincent (such an assiduous advocate for South Australians with a disability) wanted to make sure that the pet bond would not unfairly impact on South Australians with a disability. I seem to recall that it was all a bit too hard. I was interested to know that the government did not find it too hard in relation to the strata titles and community titles acts but did find it too hard in relation to residential tenancies, but perhaps the wisdom might permeate other parts of government.

In relation to the provision for the District Court Act to accord the Chief Judge the status of a Supreme Court judge, I was interested to see the contribution of the Law Society. On 26 March, the Law Society wrote to the Attorney-General and, in part, the letter reads:

The effect of this amendment is that one judge may be assigned to perform the role of two Judges. The Society notes the concerns of the Honourable Chief Justice Chris Kourakis who previously warned that such a move could result in a blowout in court backlogs, increased costs and risks to community safety as more defendants await trial free on bail. He said if the cuts were rigidly enforced, it would create a 'critical situation in terms of court functioning'.

The Society does not support a reduction in the number of Judges. Consistent with our previous comments, it is highly likely to result in additional costs and delay in other areas of the judicial system. In particular, the waiting times to go to trial will increase. Victims of crime are likely to wait longer for their matters to resolve. Justice delayed really is justice denied.

I understand the government claims the Law Society has unfounded concerns about the reduction in the number of judges. I would certainly welcome a clear commitment from the government that there will be no reduction in the judges linked to the passage of this bill.

In terms of other elements of the bill, there were two that had, if you like, a quite different application but they had something in common which I wanted to comment on. One was in relation to the Evidence Act 1929 which will allow the maintenance of audiovisual records in electronic files to be dictated by the rules of court, within which it will be clarified that the staff of the Courts Administration Authority can carry out the duties whilst adhering to the rules of the relevant court. Another element was to amend the Police (Complaints and Disciplinary Proceedings) Act 1985 to authorise preliminary investigations and to refuse to investigate a complaint.

My recollection was that the opposition was advised in a briefing that the change to the Evidence Act was to bring practice into line with the law and at the same time to put those laws in the rules of court. The second reading speech is more explicit in relation to the Police (Complaints and Disciplinary Proceedings) Act, it says:

Both the Police Complaints Authority and SAPOL advise that this has been the established practice.

I interpose to say what is being proposed by this act is already their current practice. Going back to the second reading speech:

However, the present act does not strictly authorise preliminary investigations. There is a need to clarify this situation.

So, whilst the opposition supports both of those measures and, in fact, welcomes the laws being updated to make sure they represent the best practice of administrative procedures, I just make a footnote that in terms of good practice it is better to change the law before you start changing the practice. South Australians, people beyond government, find it galling when they are expected to abide by the letter of the law but they perceive that government is not. With those remarks I indicate that the opposition will be supporting the bill but does have some questions for the committee stage.

The Hon. K.L. VINCENT (15:28): I will not take up too much of the council's time as this bill is being passed as a matter of some urgency. This bill is being passed more swiftly than would ordinarily be the case, and certainly more swiftly than would ordinarily be tolerated by most members, contrary to the convention that would ordinarily hold. While I, of course, point out that I understand there are instances where that does need to occur for the safety of the public and so on, or the continuity of service provision, there are many recent cases that I could point to where bills have passed unduly swiftly despite there being no public interest for that to happen, such as the petroleum bill very recently and also increases to MPs superannuation.

The Hon. M. Parnell: Good examples.

The Hon. K.L. VINCENT: Indeed, ones that I do not think anyone in this place or any member of the public will forget too quickly. So, while I understand that there are instances where passing bills very quickly is in the interests of the public, and I certainly believe that this is one of those times, it would be remiss of me not to point out that, unfortunately, we have seen many circumstances where that has not been the case and for that reason I would not want to see this becoming something of a habit for this council.

Nevertheless, I would draw members' attention to those provisions of the bill that relate to therapeutic and assistance animals in community title and strata properties. It is extremely encouraging to see positive change in this area, particularly given the difficulties this council faced only recently when unravelling similar issues in the government's new residential tenancies legislation. Dignity for Disability is certainly very worried about the government's lack of general understanding of the benefits that assistance animals bring to the lives of many people with disabilities.

I had amendments drafted to the aforementioned residential tenancies bill and was prepared to move forward with them to ensure that assistance animals were not excluded from being protected under the legislation. In the event that the pet bond issue arises again, I will certainly proceed with those amendments.

It is great to see these changes happening, not just changes in the definition of assistance animals, to move away from the long out-of-date provisions referring only to dogs assisting with a particular function, but also a shift away from the archaic and patronising (to say the least) language of disability as 'suffering' contained in the legislation. I think many in the disability community would argue that we do not suffer from our conditions: we suffer from society's ignorance. So, it is certainly a positive step forward; however, as I have just mentioned, I think we have a long way to go when it comes to this government's understanding of assistance animals, particularly in this context.

That is work that Dignity for Disability certainly looks forward to doing since the debacle that became the pet bond issue under the Residential Tenancies Act, that would have seen people using assistance animals such as guide dogs potentially charged a bond for that animal despite the fact that it is not a pet. That would certainly indicate that we cannot rely on the government to do that work. So Dignity for Disability certainly looks forward to continuing that work.

All that being said, I commend these measures to the council and a number of other commonsense changes contained in the bill and certainly indicate that Dignity for Disability supports the bill.

The Hon. M. PARNELL (15:31): I rise to support the second reading of this bill, but I want to just put on the record my concern with the way this bill has been handled. The government has made it clear that it intends for the bill to go through all its stages today. I want to put on the record my concern that that approach—whilst we would never rule it out—needs to be reserved for the most serious cases where there is a clear public interest in the Legislative Council abandoning its normal rule, which is that a bill is never taken through all its stages and completed in the same week as it is introduced. This bill was introduced yesterday and today it is going through all its stages, and I appreciate that I did have a phone call from an officer of the Attorney-General's Department and also from minister Gago to inform me that that was the government's intention.

I will also say that my name does not appear on the running sheet for today because, of course, the Greens try to put in our running sheet to identify the matters we are going to speak on as early in the day as possible. We had our running sheet to the whips before 10 o'clock this morning and it was only after 10 o'clock that I realised that this bill was going to be somewhat of a priority. So we have had to rearrange our consideration of legislation. We would normally have expected to have had the next two weeks to consider our position on this bill, yet we have had to come to grips with it in a more rapid time frame.

The purpose of my second reading contribution is to say that we would normally rail fiercely against having to vote on a bill the day after it is introduced, but we are prepared to listen to reason. I will just say now that when we get to clause 9 of the bill I will as forensically as I can examine whether this alleged uncertainty or lack of clarity in the legislation is really there, and I also have a number of other questions around the circumstances that have led to us debating this bill today. If the answers are unsatisfactory then we will not be inclined to see this bill go through all its stages, but I look forward to the opportunity of asking those questions at clause 9.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:35): I want to take this opportunity to thank honourable members for their cooperation on this bill. The Chief Judge of the District Court has requested that this bill be passed by parliament and proclaimed as a matter of urgency. The matter of interest to the Chief Judge is clause 9, which will allow for the appointment of an acting chief judge of the District Court when the office of the Chief Judge becomes vacant.

The current Chief Judge, the Hon. Terry Worthington, retires from the bench on Tuesday 23 April and without the amendment proposed by clause 9 there is no provision for the appointment of an acting chief judge when the office becomes vacant. The current drafting of section 11 provides that an acting chief judge may only be appointed when the Chief Judge is absent from duties. This means that an acting chief judge will not be able to be appointed upon the Hon. Terry Worthington's retirement in a fortnight.

The government had intended to rely on the convention that the most senior of the other judges who is available to take on the role of the Chief Judge would take on the role after the Hon. Terry Worthington's retirement. However, the Chief Judge has advised the government and the opposition, through the Hon. Mr Wade and Ms Chapman MP from the other place, that he does not consider such convention is adequate to ensure that the administration of the court can continue after his retirement. Accordingly, the Chief Judge has asked that the government and the opposition secure the passage of this bill for an act to commence before the date.

That is why we have asked for the cooperation of members. We usually do leave notices on the paper for a number of weeks to allow members the time to consider and prepare their contributions in a considered way. However, in light of this, we were not able to offer that convention. Rather, what we have asked is that members put that convention aside and consider this expeditiously.

The only other comment I will make is that Mr Wade has also asked for a repetition of the comments made by the Attorney-General in the other place that clause 10 has nothing whatsoever to do with any alleged cost-cutting measures in the courts. With that, I commend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I thank the minister for restating my question in my second reading speech. However, at the risk of being pedantic, could I have a more explicit response to the following question: can the government assure the council that there will be no reduction in the number of Supreme Court judges associated with the implementation of this bill?

The CHAIR: Is this in relation to your clause 10 assurance?

The Hon. S.G. WADE: I think it's new clause 9.

The Hon. G.E. GAGO: It is an outrageous question. This bill will have a life over many years. Is the honourable member really suggesting that there might not be any changes over the next 20-odd years? The government simply cannot predict what might occur. What I can assure the honourable member of is that there are no planned changes to the number of judges but, as I said, this piece of legislation could have a life of 20 or 30 years. It would be completely unreasonable and unfair to be suggesting that any government could make predictions that far ahead. We do not know what changes might take place.

The Hon. S.G. WADE: My comment in relation to the bill was actually to avoid that sort of open-ended implication. The fact of the matter is, in amongst her spit, the minister did give me the answer I was seeking.

In relation to my next question, I need to be careful here because I gather the bill has been renumbered since it arrived in this house and it only arrived last night, so I hope the minister and the Chair might allow us perhaps to stay on clause 1 so that I do not get pulled up if we are talking about a clause that was relating to the previous reprint of the bill. So, I will persist in that course, and I hope the government will be cooperative.

Let's just talk about proposed clauses. Proposed section 11AA(2)(b) says that if no such appointment is made it devolves on the most senior of the other judges available to undertake those responsibilities. I seek a response to the question asked in the House of Assembly: is the seniority determined by reference to the time served by the judge, the age of the judge, or some other qualification, or some other manner?

The Hon. G.E. GAGO: I am advised it is based on time served.

The Hon. S.G. WADE: It was interesting to see the reference in the bill because the opposition was advised informally in relation to the appeals bill that there was no seniority rule in South Australia. In that context, I ask: is this the only reference to appointment based on seniority in this bill or other bills?

The Hon. G.E. GAGO: I am not really sure what the honourable member is really asking. If he is asking if there is any reference to seniority anywhere else in this bill, I have been advised no.

The Hon. M. PARNELL: I did indicate that I would ask my questions at clause 9, but the Hon. Stephen Wade has launched into it in clause 1 and, if we are going to stick on a roll, I can ask them now rather than wait until we get to clause 9, if that suits the committee?

The CHAIR: You have the call, sir.

The Hon. M. PARNELL: Thank you. What I want to do is just test the concern that has resulted in this bill being urgently dealt with today. My understanding of what the minister said is that there was a certain ambiguity in the current legislation and that the ambiguity meant that the existing provision was not adequate to deal with the situation where a chief judge resigns or retires and that there may be some difficulty replacing that person. The second reading speech contains the following sentence:

Currently, both Acts—

meaning Supreme and District Court acts—

make provision for an acting Chief Judge/Chief Justice only if the Chief Judge or Chief Justice are absent. The amendments moved extend this to circumstances where the offices of the Chief Judge and Chief Justice become vacant.

I want to test whether that is really the case. When you look at the existing provision for the composition of the court, in part 3 of the District Court Act you find that section 10 basically provides that the court's judiciary consists of:

(a) the Chief Judge; and

(b) the other Judges; and

(c) the Masters.

Of course, there is nothing in there that says how many of each of these you need to have. I guess there is also possibly an argument that we do not even need to have a Chief Judge.

People might think, 'Well, of course you have to have a Chief Judge,' because when you go to section 11 it provides that the Chief Judge is the principal judicial officer of the court and that the Chief Judge is responsible for the administration of the court. So there would be an argument that, by implication, you have to have a Chief Judge. However, the question arises: does a person have to be appointed in that role for the functions to be fulfilled? Section 11(3) provides:

In the absence of the Chief Judge from official duties, responsibility for administration of the Court devolves on a Judge appointed by the Governor to act in the Chief Judge's absence—

and this is the important bit—

or, if no such appointment has been made, on the most senior of the other Judges who is available to undertake that responsibility.

That answers the Hon. Stephen Wade's question about whether the concept of seniority of judges is in other legislation; yes, it is already in the District Court Act. However, it seems to me that when you read that as a whole, for whatever circumstance—either absence, non-appointment or resignation of a Chief Judge—the legislation makes it clear that there is not to be a vacuum. You cannot have a situation where no-one is responsible for the administration. There is a default, and the default is the most senior of the other judges who is available to undertake that responsibility.

My question is: if that is the case, if there is a mechanism for providing for the administration of the court, why do we need to pass this amendment as a matter of urgency? Surely if Chief Judge Worthington retires on 23 April, then automatically the next most senior person would take responsibility for administration.

The Hon. G.E. GAGO: I have been advised that the lack of clarity is around the word 'absence'. I have been advised that it is arguable that the word 'absence' applies only when the Chief Judge is on leave or ill. It is arguable, also, that the word 'absence' does not include a vacancy of the office from retirement or death. That is the issue that the Chief Judge has raised, and he has asked that it be clarified before it becomes vacant. The view is that it is arguable, and therefore we are attempting to address that in an expeditious way. That is the nub of it.

The Hon. S.G. WADE: The opposition would just reiterate the point that we are expediting this bill because of a direct request from the Chief Judge. We would be happy to look at the real need for expedition if it was a government initiative, but we respect that the Chief Judge and, as I understand it, the Chief Justice, are also of the view that the clarification this bill provides would be useful, so we are happy to defer and expedite the bill.

The Hon. M. PARNELL: I thank the minister for her answer, and I accept what she says in that it is arguable. I am just making the point that I think it is equally arguable that the statute never intended a vacancy to be entrenched. I think that mechanism is sufficient. I will not pursue that particular point any longer.

In terms of Chief Judge Worthington, the minister said that he is retiring on 23 April. My question is: is he retiring because he has reached the statutory retirement age of 70 and, if he has not reached the statutory age, could not he have been prevailed on to remain in office for a short period longer as an alternative to the Legislative Council having to put this bill through in the same week it was introduced?

The Hon. G.E. GAGO: I have been advised that officers here with me today do not know the reason for his retirement and that the government has never prevailed on any Chief Judge requesting retirement to postpone that, nor do we ever intend to.

The Hon. M. PARNELL: I thank the minister for her answer. Another question on the same topic: how long has the government known that the Chief Judge was to retire on 23 April?

The Hon. G.E. GAGO: Again, officers with me today are not sure of the exact time the Chief Judge indicated that he wished to retire, but it has been some time. However, it is only today that the Chief Judge raised the issue of the lack of clarity he perceived and his sense of urgency to clarify it and also to have this bill through today to address that lack of clarity.

The Hon. M. PARNELL: I am not going to pursue this line of questioning any further, but I will say that, whilst not being terribly forensic and just asking a few simple questions, it seems to me that the case is hardly made for this to be urgent to dispense with the Legislative Council's normal requirements. The stakes are not particularly high; it could be regarded as a fairly minor administrative bill. Mind you, we have only really investigated this. The Hon. Kelly Vincent raised the important issue of helper animals for people who are blind or deaf or who have other needs for such animals, and there is a range of other issues in this bill that we have not considered at all.

I am not proposing to take the matter further by blocking the legislation. Clearly the government has the numbers anyway; the opposition has agreed it can go through. The point that I am making is that this is pretty poor. It is pretty poor that, as I understand it, letters went out months ago inviting people to the special sitting of the District Court to mark the Chief Judge's retirement and, whilst the government might only have been aware of an ambiguity today or in the last little while, I have also put the case that it is not so ambiguous that the sky would have fallen in. I think it would have been pretty straightforward. The most senior judge would have filled the spot for a while until a new appointment was made.

Really, in terms of the hierarchy of evils to be overcome, wrongs to be addressed, in terms of giving legislation like this priority, this bill does not cut it. This is not good process and it is not the best use of the Legislative Council's time to make us prioritise something that did not need it. Having said that, I do take this opportunity to wish the Chief Judge all the very best in his retirement. I hope he has a happy and fulfilling time off the bench.

The Hon. S.G. Wade: As soon as possible.

The Hon. M. PARNELL: I appreciate that this bill will probably now pass through its remaining stages fairly quickly.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. R.I. LUCAS: My question to the minister relates to clause 5—Pornographic nature of material. It indicates:

No offence is committed against this Division by reason of the production, dissemination or possession of material in good faith by—

(a) a police officer or other law enforcement officer acting in the course of his or her duties

That is entirely clear. Paragraph (b) states:

any other person acting in the course of his or her duties in the administration of the criminal justice system.

Can I ask the minister whether the government has drafted this provision specifically to cover, amongst others, ministers of the Crown who might come within this definition of persons involved in the administration of the criminal justice system?

The Hon. G.E. GAGO: I am advised the answer is no.

The Hon. R.I. LUCAS: Whilst I accept that in the minister's second reading explanation she, or the government, refers to other officers, such as teachers and child protection officers, can the minister indicate to the committee whether she is indicating that a minister of the Crown who was involved in administration of the criminal justice system would not be covered by this particular provision?

The Hon. G.E. GAGO: I have been advised that the clarification of what the member is asking is in (2a)(b) where that person must be acting in the course of his or her duties in the administration of the criminal justice system. It is any officer who is acting in the course of his or her duties, and that could be a minister of the Crown.

The Hon. R.I. LUCAS: I thank the minister for that clarification because, certainly upon my reading, (2a)(b) does make it clear that if a minister of the Crown, an attorney-general, a minister for police, an acting attorney-general or, indeed, an acting minister for police could argue that in the course of his or her duties in the administration of the criminal justice system they were in possession of pornographic material in good faith, this particular provision has been drafted to cover those sorts of circumstances. I thank the minister for now clarifying that was the government's intention.

Clause passed.

Remaining clauses (6 to 29) and title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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