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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-11-13 Daily Xml
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Bills

Supreme Court (Court of Appeal) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:15): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, today I introduce the Supreme Court (Court of Appeal) Amendment Bill 2019.

The Bill will establish the Court of Appeal as a separate division of the Supreme Court. The benefits of a Court of Appeal to South Australia include developing specialist appellate expertise in the judiciary leading to greater efficiency and higher quality judgments.

Mr President, the jurisdiction of the Supreme Court includes hearing first instance civil cases and serious criminal matters including trials for offences such as murder and treason.

In its appellate jurisdiction, the Supreme Court reviews and determines errors which may have occurred in other courts of the State and interprets and expounds the law for the guidance of other courts.

Under the current arrangements, the judges of the Supreme Court work on a rotational basis in the Full Court to hear civil appeals and in the Court of Criminal Appeal to hear criminal appeals.

They also sit as a single judge when hearing and determining first instance civil and criminal matters.

The functions of an appellate and a trial judge are significantly different.

The trial function involves hearing evidence, making findings of fact and making rulings on evidence.

The appellate function involves a much greater element of theory, principle and conceptualisation of the law.

Pursuing this reform simply recognises that appellate work involves functions and skills different from those performed in trial work, and is therefore better performed in a separate court of permanent members than in a court of changing membership.

By appointing judges to a Court of Appeal on a permanent and ongoing basis, the development of specialist appellate expertise will be fostered, leading to greater efficiency in our justice system and higher quality judgments.

Mr President, South Australia remains one of the only jurisdictions yet to establish a dedicated Court of Appeal.

When considering this reform, the Government has looked to the advantages that have been borne out in New South Wales, Victoria, Queensland and Western Australia following the successful establishment of Courts of Appeal in those jurisdictions.

In particular in Western Australia a high-level committee was established in 2001 to consider the desirability and feasibility of establishing a Court of Appeal there.

The Court of Appeal Committee's final report concluded that the long-standing Courts of Appeal in New South Wales, Victoria and Queensland were successful, working effectively and efficiently, and were superior to a Full Court comprising several judges of a Supreme Court sitting on appeals in rotation (as is currently the case in this State).

The committee found that Courts of Appeal raised standards generally in the courts and the legal profession, improved the quality and consistency of appellate judgments, increased the speed of delivery of such judgments, and involved shorter hearings.

The committee's report also found that the principled development of the law was facilitated and that the Court of Appeal had developed a status and authority not previously enjoyed by Full Courts.

For these reasons, the report concluded that the establishment of a Court of Appeal in Western Australia would advance the administration of justice in that state.

Mr President, the Bill has the following major features to achieve these objectives:

The Court of Appeal is established as a division of the Supreme Court, with a separate General Division for the matters that are not to be heard by the Court of Appeal. This is consistent with the situation in New South Wales, Victoria, Western Australia and Queensland, whose Courts of Appeal are integrated with their Supreme Courts. The other jurisdictions (Northern Territory, the Australian Capital Territory and Tasmania) do not have a Court of Appeal.

The Chief Justice remains the principal judicial officer of the Supreme Court, including of the Court of Appeal.

The Court of Appeal is comprised of the Chief Justice, President and the judges of the Supreme Court who have been appointed to the Court of Appeal.

The President of the Court of Appeal is responsible to the Chief Justice for the administration of the Court of Appeal.

The jurisdiction of the Court of Appeal will be the existing jurisdiction of the Full Court of the Supreme Court of South Australia and of the Court of Criminal Appeal.

To hear matters, the Court of Appeal will be constituted by at least three judicial officers.

The General Division will be comprised of the Chief Justice and the judges of the Supreme Court who are not appointed to the Court of Appeal.

The jurisdiction of the General Division will be the current jurisdiction of the single judges of the Supreme Court. It will also include the current jurisdiction of the Land and Valuation Division of the Supreme Court which is to be abolished and subsumed within the General Division.

To hear matters, the General Division will be constituted by a single judge.

The Chief Justice and the President will jointly be able to authorise a judge of the Court of Appeal to temporarily sit in the General Division and authorise a judge of the General Division to temporarily sit in the Court of Appeal.

The Bill also makes a number of consequential and transitional amendments to legislation to reflect the new structure.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Supreme Court Act 1935

4—Amendment of section 5—Interpretation

This clause inserts definitions for the purposes of the measure and deletes the definition of 'Full Court'.

5—Insertion of section 6A

Proposed new section 6A provides that the Supreme Court will be constituted of the General Division and the Court of Appeal.

6—Amendment of section 7—Judicial officers of the court

This clause provides that the Court of Appeal will consist of the Chief Justice, the President, the puisne judges that are appointed to the Court of Appeal as well as the masters and judicial registrars.

7—Amendment of section 8—Qualifications for appointment as judges and masters

This clause provides that a person is not qualified for appointment as President unless the person is a practitioner of the court of not less than 12 years' standing or a puisne judge of the court

8—Amendment of section 9—Appointments to the court

This clause is consequential.

9—Insertion of section 9B

Proposed new section 9B provides that the President is a judge of the Supreme Court and is responsible, subject to the Chief Justice's directions, for the administration of the Court of Appeal.

10—Substitution of section 10

Proposed new section 10 deals with acting appointments during any absence of the Chief Justice or the President.

11—Amendment of section 11—Acting judges and acting masters

This clause makes consequential changes and updates subsection (6) (which currently still refers to the Industrial Court).

12—Amendment of section 12—Remuneration of judges and masters

This clause is consequential.

13—Substitution of heading to Part 2 Division 1

This clause is consequential.

14—Amendment of section 17—General jurisdiction

This clause provides that the court does not, in its General Division, have jurisdiction in respect of the matters that are required under proposed new section 19B, to be heard and determined by the Court of Appeal.

15—Insertion of Part 2 Division 1A

This clause inserts new provisions on the proposed Court of Appeal as follows:

Division 1A—Court of Appeal

19A—Establishment of Court of Appeal

The Court of Appeal is established as a division of the Supreme Court.

19B—Jurisdiction

This section lists matters that will fall within the jurisdiction of the Court of Appeal.

19C—General requirements as to constitution of Court of Appeal

The Court of Appeal will generally be constituted of at least 3 judges.

19D—Powers

The Court of Appeal may, in determining matters within the jurisdiction conferred by section 19B, exercise any jurisdiction or powers that the court has in its General Division or that are currently exercisable by the Full Court.

16—Amendment of section 45—Time and place of sittings

The Court of Appeal will sit at such times and places as the President may direct.

17—Substitution of sections 47 and 48

This clause deletes the current sections 47 and 48 (which relate to the Full Court) and substitutes new sections as follows:

47—Distribution of business

The Chief Justice may authorise a judge to act in another division of the court.

48—Jurisdiction of single judge, master, etc

Subject to this or any other Act and to rules of court, the jurisdiction of the court may be exercised by 1 or more judges sitting in court and may be exercised by a judge in chambers or by a master or judicial registrar to the extent authorised by this or any other Act, or by the rules of court.

18—Amendment of section 49—Questions of law reserved for Court of Appeal

This clause is consequential.

19—Amendment of section 50—Appeals

This clause is consequential.

20—Repeal of Part 3A

This clause repeals the Part dealing with the Land and Valuation Court.

21—Amendment of section 72—Rules of court

This clause provides that rules of court relating only to the practice and procedure of the Court of Appeal must be made by 3 or more judges of the Court of Appeal.

Schedule 1—Related amendments and transitional provisions etc

The Schedule:

makes related amendments to various Acts, principally to remove references to the Full Court and the Land and Valuation Court

inserts a definition of 'Court of Appeal' in the Acts Interpretation Act 1915

includes transitional provisions dealing with references in instruments to the Full Court and to the Land and Valuation Court and allowing the Governor to determine the initial remuneration payable to the President and judges of the Court of Appeal.

Debated adjourned on motion of Hon. I.K. Hunter.

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