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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-07-26 Daily Xml
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Judicial Administration (Auxiliary Appointments and Powers) (Qualification for Appointment) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 July 2016.)

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:01): I thank those members who have contributed to the debate on this bill. As has been noted from time to time, the courts need to appoint auxiliary judges. This may be for reasons such as to cover leave of permanently appointed judges or to hear a particular case.

The Judicial Administration (Auxiliary Appointments and Powers) Act 1988 already makes provision for the Governor, with the concurrence of the Chief Justice, to appoint a person to act in a specified judicial office on an auxiliary basis. The categories of persons who may be appointed are set out in the act and have been referred to during the second reading debate. This bill seeks to expand that category by making provision for a person holding a prescribed office in a prescribed court of a jurisdiction outside of Australia to be appointed.

The Hon. Mr McLachlan stated during his second reading contribution that, if this bill is passed, the appointment of auxiliary judges from overseas could occur without further reference to this parliament, and that appointments would be by the Governor on advice with concurrence of the Chief Justice. This bill does not of itself enable an international appointment to be made. Before any person could be appointed from a non-Australian jurisdiction, the office held by that person, and the foreign court in which they hold it, would need to be prescribed by regulation.

This means that, before any international auxiliary could be appointed, the usual parliamentary oversight of the regulations would apply; that is, the regulation would be required to be laid before each house of parliament and be referred for consideration by the Legislative Review Committee. The regulation may be disallowed.

The bill only facilitates prescribing international judicial officers. The further requirement to pass regulations, and then for the Governor to only make an appointment with the concurrence of the Chief Justice, ensures appropriate checks and balances exist before any appointment can be made. There are currently no regulations being drafted, and there are none proposed.

The Hon. Mr McLachlan asked what circumstances are envisaged by the government for judicial exchanges and how the value of such exchanges will be measured or assessed. The bill itself does not specifically provide for judicial exchanges. It is, in effect, enabling legislation. It would be a matter for the courts, and specifically the judicial head of the relevant court, to assess the value of any proposed exchange for the courts before agreeing to participate.

Likewise, it would be a matter for the judicial head of the relevant court to determine those administrative issues raised by the honourable member, such as whether a travel report or other account of the exchange be provided. In short, the issues raised by the honourable member would be considered on a case-by-case basis by the relevant courts.

The Hon. Mr McLachlan also asked questions about some statements made by the Chief Justice during a radio interview given by him about this bill. He notes that the Chief Justice indicated a desire for the Supreme Court to deal with high-value commercial litigation. He asked what deficiencies exist in our current arrangements to prevent the Supreme Court from handling such cases today, what the definition of international judge would be, what the title and jurisdiction of well-known international courts (referred to by the Chief Justice) are, and whether they currently allow South Australian judges to sit on them. Finally, the Hon. Mr McLachlan asked the government to set out what would be required to set up an international commercial court in this state and the projected cost of doing so.

I cannot say whether the Chief Justice was referring to any specific international courts during his interview. It is worth noting, though, that in his letter to the Attorney-General requesting that this piece of legislation be considered, the Chief Justice mentions that he was in Singapore speaking at a conference and met with members of Singapore's judiciary.

Each international court has different structures and rules, including different rules about who may sit as a judicial officer upon them. The Hon. Mr McLachlan may take some comfort to hear, for example, that a former New South Wales Supreme Court judge, Justice Roger Giles QC, is a current judge of the Dubai International Financial Centre Court and is also an international judge at the Singapore International Commercial Court.

Likewise, another former New South Wales Supreme Court judge, Justice Patricia Bergin, is an international judge at the Singapore International Commercial Court, as is the Hon. Justice Dyson Heydon, who was a judge of the New South Wales Court of Appeal before his appointment to the High Court of Australia. Article 95(4) of the constitution of the Republic of Singapore permits the appointment of a person who, in the opinion of the Chief Justice, is a person with the necessary qualification, experience and professional standing to be an international judge of the Supreme Court of Singapore.

The Chief Justice did not say during his interview on ABC radio that there was any deficiency in our current arrangements that prevents our courts from handling international disputes. He noted that contractual clauses usually provide for international disputes to be settled overseas, so he wants to make South Australia more attractive to parties to decide they would want any dispute to be settled here. He explained that one way to start that process was, 'to invite a judge from an international court to sit with us…in one of those matters.'

The government has not suggested that it has any plans to set up a specific international commercial court. The Chief Justice did not suggest that should be done in his interview, either. He stated:

The idea is to build up the capacity and reputation of the Supreme Court of South Australia as a court that can deal with high-value commercial litigation which has an international aspect, and the idea is simply to allow the legislative facility, because there are no actual plans in place yet, for an international judge to sit on cases of that kind.

Again, I remind honourable members that this bill is effectively 'enabling' legislation. It does not of itself enable an international appointment to be made. Before any person could be appointed from a non-Australian jurisdiction, the office held by that person, and the foreign court in which they held it, would need to be prescribed by regulation, and the usual parliamentary oversight of the regulations would apply. I commend the bill to members.

Bill read a second time.

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