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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-09-08 Daily Xml
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Statutes Amendment (Youth Court) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 June 2015.)

The Hon. M.C. PARNELL (15:49): I wish to make a few remarks about this legislation which I think is generally being supported in the parliament, but amendments have been put forward that we will need to consider when we go into committee. At the heart of this bill are three questions:

the extent to which the Youth Court ought to remain a specialist court.

Then flowing from that question is:

whether the judicial officers working in that jurisdiction should be exclusively working in the Youth Court, or whether it is appropriate for them to overlap with other jurisdictions; and

the question of the status of the court or, if you like, the placement of the court in the pecking order of judicial bodies.

The Law Society of South Australia has put a submission to government which raises a number of issues, but the heart of it goes to the special nature of the Youth Court. If I can just read a couple of sentences from the Law Society's submission, it says:

It is generally accepted that developmental, emotional, psychological and dependency issues, and their impact on offending, rehabilitation and sentencing generally have a much greater relevance in youths. We therefore suggest that it would be counter-productive, if not imprudent, for specialists to be removed from the Youth Court.

This is one important reason why the Society believes the Youth Court should not be seen, and therefore treated, as the equivalent of the Magistrates Court for young offenders.

Effectively, the Law Society is saying this is not a junior Magistrates Court, this is the Youth Court; it has a separate identity and a separate place in the pecking order.

One of the provisions of the bill—and I think it will either be amended, or certainly it will be moved to be amended—is whether or not the chief judicial officer of the court, described as the court's 'principal judicial officer' in the bill, should be a judge of the District Court or whether that person can be the Chief Magistrate. I understand that the Hon. Andrew McLachlan has moved amendments which remove the reference to 'Chief Magistrate', which would effectively mean that the court's principal judicial officer must be a judge of the District Court.

I think that is consistent with what the Law Society has said: that if you had, for example, the Chief Magistrate also being the court's principal judicial officer, and given that other parts of the bill also provide for magistrates to be exercising most of the jurisdiction of the Youth Court, then it is pretty hard to see the Youth Court as anything other than a junior Magistrates Court. So at this stage the Greens, whilst we have not heard the full debate, are inclined to support the opposition's amendments in relation to that.

Having put those few brief remarks on the record, the Greens will be supporting the second reading of this bill, and we look forward to the committee stage.

The Hon. T.T. NGO (15:53): I rise today to give my support to the Statutes Amendment (Youth Court) Bill. This bill is part of a number of measures to transform the criminal justice system. The Youth Court was established in 1993 by the Youth Court Act 1993 (the act). It hears criminal cases involving young people and child protection matters. Currently, the Youth Court has a senior judge and two specialist magistrates. Under the act, the court is made up by judges, magistrates and special justices designated as members of the court and a District Court judge is the head of the court.

The bill will change the composition of the Youth Court. Under the bill, the Youth Court will be made up by magistrates and special justices with either a District Court judge or the Chief Magistrate as the head of the court. At least two of the magistrates will make up the principal judiciary of the courts. Magistrates who are part of the principal judiciary of the court will only sit in the Youth Court. These magistrates will have knowledge and insight from working with youth on a daily basis.

This bill makes further necessary changes to the act for magistrates to undertake all the duties of the Youth Court. The bill will allow magistrates to hear major indictable matters in the Youth Court. The bill will also allow magistrates to impose a sentence of detention for a maximum of three years.

I also note that the Law Society is concerned by these changes. In its submission, the Law Society points out that the Youth Court is different from other courts, as there is no limit to the seriousness of the offences it hears. This means that it is essentially part Magistrates Court, District Court and Supreme Court. Just because an offence is allegedly committed by a youth does not make it less serious, so I therefore understand and support their concern. However, the Attorney-General has pointed out that currently magistrates hear the majority of matters before the Youth Court.

Magistrates already deal with a variety of matters, some being quite complicated. Magistrates also often deal with a number of criminal matters in the Youth Court which are serious in nature. I have been told that, in the past, very few major indictable cases have proceeded to trial in the Youth Court. In 2013-14, 28 major indictable matters were listed for trial, but only four of those proceeded to trial in the Youth Court. I hope the Attorney-General's contribution alleviated the Law Society's concerns.

Where a magistrate convicts an offender of a major indictable offence, the appeal will lie with the Full Court of the Supreme Court. The Law Society, in its submission, opposed the appeal lying with the Full Court of the Supreme Court. It stated that the appeal should instead lie with a single justice of the Supreme Court, as magistrates are lower in the judicial hierarchy than judges and, as such, are more prone to error.

I myself am not a lawyer and do not claim to be one, but if the Law Society believes a magistrate is prone to error, then perhaps this clause is something that could be amended. I will leave that to honourable members with a legal mind (such as the Hon. Mr Wade, who is a lawyer) to consider those amendments.

On another point, there has been some concern about the bill introducing an option for the head of the court to either be the Chief Magistrate or a District Court judge, as it must be currently. It should be noted that, by reason of statute, the Chief Magistrate is also a District Court judge. As the Attorney-General pointed out, the role of the presiding member is not a full-time role; it involves administration of the court, including determining court lists. The head of the court will probably not have to sit and hear cases in the Youth Court frequently.

There have also been accusations that this particular measure is a cost-cutting exercise. I am told that this is not the case, as the Chief Magistrate is paid the same and gets the same entitlements as a District Court judge. It is important for members to consider that this bill does not determine whether the next head of the Youth Court will be the Chief Magistrate or a District Court judge; what it does provide is a choice.

Currently, the Attorney-General must choose a District Court judge to be head of the Youth Court, in consultation with the legal community. This bill changes this to allow the Attorney-General to choose either a District Court judge or the Chief Magistrate when there is a vacancy. It will be up to the Attorney-General of the day, in consultation with the legal community, to determine who is best for the role, be that the Chief Magistrate or a District Court judge. I commend this bill to the chamber.

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:00): I understand that all second reading contributions have been completed and I thank honourable members who have contributed thus far to the debate on this bill. As noted in the second reading explanation, this bill is about the composition of the Youth Court and, increasingly, the flexibility of the Youth Court to enable the court to operate in a more efficient manner.

In the course of the debate on the bill a number of concerns have been raised, in particular a concern that the bill will diminish the status of the role of the Youth Court. I reinforce that the bill will not change the current situation, whereby there is a physically separate Youth Court, and it will not diminish the status or role of the Youth Court. The Youth Court will remain at its current premises in Wright Street.

As noted by members, it is important that judicial officers in the Youth Court have experience and expertise in relation to youth matters. The bill provides for this by requiring that at least two magistrates in the Youth Court will be Youth Court magistrates, so they will be principally occupied with the work of the court. Concerns have also been raised about the option of the Chief Magistrate being at the helm of the Youth Court. I consider that that is appropriate and that there is scope for the principal judicial officer of the Magistrates Court also to be the principal judicial officer of the Youth Court.

The principal judicial officer provides leadership and broad oversight of the court. It may well be appropriate and a good use of resources for the same person providing that oversight in the Youth Court and the Magistrates Court. Although they are different and separate courts, there are also similarities between them. I note that under the bill there is scope for the judge of the Youth Court to delegate his or her power to one of the Youth Court magistrates who is a member of the court's principal judiciary. Again, I thank honourable members for their contributions and their support and look forward to it being dealt with expeditiously through the committee stage.

Bill read a second time.

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