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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-08-29 Daily Xml
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Bills

Supreme Court (Distribution of Business) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 July 2023.)

The Hon. S.L. GAME (15:45): I rise briefly in opposition to this bill. The Supreme Court (Distribution of Business) Amendment Bill 2023 aims, as the Attorney-General has suggested, to lead to efficiencies and improve case flow management. Section 47 of the Supreme Court Act 1935 provides exceptions to the general distribution of business between the Court of Appeal and the general division, therefore obtaining the consent of the president is not just appropriate but essential.

The proposed amendment to section 47 is said to offer more flexibility in the distribution of justices across jurisdictions; however, that is only by removing the current requirement for the consent of the President of the Court of Appeal, a move which I believe is extraordinary.

It is evident that the government has not consulted the two primary legal bodies in South Australia, the Law Society of South Australia and the South Australian Bar Association. After engaging with both entities, I learned that the Attorney-General had approached neither. Moreover, they have not been presented with any concrete data, instances or examples indicating inefficiencies in case flow management in South Australia directly stemming from the existing section 47 of the Supreme Court Act.

Allowing the removal of the agreement between both the Chief Justice and the President of the Court of Appeal would jeopardise their independence. If there is no substantial data justifying the amendment to the current legislation, I question the need for any change. It is crucial for us to thoughtfully assess this matter, equipped with comprehensive information. I firmly believe that the Legislative Council should take into account the insights of the two foremost legal organisations in South Australia.

The Hon. F. PANGALLO (15:46): I am unclear about the reason for this bill, apart from a bland explanation that it is to create more effective efficiencies and improve case flow management within the courts, which the Attorney-General told us was a compelling reason for the move.

The reality is that Labor and the Chief Justice never wanted a Court of Appeal, so this is all about politics, not the efficient, effective administration of justice in the state. It is a pity that the Attorney-General did not take the time to consult on this move with the South Australian Bar Association, the Law Society and others in the justice system to gauge whether such legislation was necessary and what impact it would have on the efficiencies and the highly skilled work of the Court of Appeal should this step go ahead. We do not even know if he has consulted the President of the Court of Appeal, the Hon. Justice Livesey KC.

I understand that the Bar Association only yesterday received a written response from the Attorney-General saying they would consider their submissions. They already made up their minds anyway, so that is quite disingenuous.

The directive for this bill has had to come from the Chief Justice, who made it obvious in 2019 that he was opposed to establishing this court. As a Labor appointee, Labor backed him in then and they do so again.

Interestingly, the Attorney-General, when he was in opposition, did not speak on the 2019 bill. It was left to the Hon. Ian Hunter, who argued that this state was too small and did not have enough matters to warrant an appellate court. This time all we got was a brief explanation of the amendment by the Hon. Tung Ngo, which does not go to the real issue that the Chief Justice has been unable to resolve: the backlog of matters piling up in the District Court.

I cannot tell you what the backlog is in the Supreme Court because the Chief Justice was unable to provide me with those figures when I asked for them, although I did get a variety of unsatisfactory reasons; however, according to the Bar Association, the state's backlog indicators in 2019 were among the highest in the nation. Obviously, they have not improved if it has got to this position.

Concerns were also raised about the length of time in which judgements are being delivered. Perhaps the Attorney-General could provide us with the figures of matters, both civil and criminal, which are longer than the expected six months. In one matter I raised here only a few months ago, a civil judgement in the District Court was finally delivered after 14 months when it was agreed to be an expedited decision. No reason has been given for that delay, but I am aware of others that took a longer than expected time, and the guideline of six months. It would be interesting to see figures on how many judgements were delivered within the preferred time limit. Justice delayed is justice denied, as they say.

Delays in getting timely listings and cost differences have also resulted in lawyers preferring to take some of their matters to the Federal Court. Currently, under section 47 of the bill that incidentally was passed in this place in 2019 with the support of the Liberals, the Greens and SA-Best, an agreement is required between the Chief Justice and the President of the Court of Appeal, as well as the agreement of the individual judge, to give an exemption to the general distribution of business between the Court of Appeal and the general division of the Supreme Court to allow one judge from one division to sit in another.

In this amended bill, that agreement goes out the door. It allows the Chief Justice to override the President if there is not agreement or consent to a judge being assigned to another court. It effectively serves to undermine the independence of the appellate court. Is this the Chief Justice's answer to clearing backlogs and the expected flood of Ironside matters, avoiding consultation with the President and taking appellate expertise from the Court of Appeal to fill those voids? Who then decides which judge takes their place? Removing the experience in that court could well impact on the quality and efficiency of decisions.

My concern is that after waiting so long for this state to follow others with an appellate court, which has delivered several timely and reasoned outcomes, South Australia is falling behind the rest of the nation. No other state has in place what this legislation intends to do. It will weaken the Court of Appeal and, I would suggest to the Attorney-General and his party, lead to its eventual dismantling. It is shameful and I am disappointed that he and the government do not see this for what it is, or does he?

If there are not enough judges to clear the drains, then do something about it and appoint more. In 2019, then President of the Bar Association, Mark Hoffmann KC, proposed that the retirement age of judicial officers be increased prospectively. The current President of the Bar Association, Marie Shaw KC, a former distinguished Supreme Court judge and now barrister, rightly points out that the parliament does not have before it anything to identify that this is necessary, and cannot identify a good basis to support this bill. Let me quote from her letter, which I shall seek to table. She writes, and I quote:

No basis, data or examples have been put forward, which either make good the assertion that the amendment will lead to efficiencies in caseflow management or indicate that the existing section 47 is not working properly and appropriately. The South Australian Bar Association would be concerned if the bill were to detract from the independence of the Court of Appeal.

That may well be the likely outcome and, as I have indicated, cause other consequences in what is one of the most critical areas of our justice system. It will also put South Australia out of step with every other state that has an appellate court, a point emphasised by the Law Society in a letter to the Attorney-General on 25 August in which it cites a lack of information about any efficiencies in case flow management that this legislation will supposedly fix. I seek leave to table that letter.

Leave granted.

The Hon. F. PANGALLO: I am not sure whether I sought or asked that leave be granted for Marie Shaw KC's letter?

The PRESIDENT: No, you didn't.

The Hon. F. PANGALLO: May I seek that as well, Mr President?

Leave granted.

The Hon. F. PANGALLO: Although this debate will hardly raise a ripple of interest in the general community, and Labor and the Chief Justice probably know this, this should worry those already in the system or those who may need it in the future. Having an effective and independent Court of Appeal in place was something I and my colleague at Channel 7, Graham Archer, had hoped for after a series of investigations conducted by the Today Tonight program into serious injustices.

While I am still in this place, I intend to revisit the establishment of a criminal cases review commission, where convicted persons who have legitimate claims of the safety of their conviction can have it investigated by an independent body and referred to a court where the conviction can be overturned. A bill to set up a body in this state was introduced in 2010 but was rejected by the Legislative Review Committee in July 2012. What a pity. It would have aided several injustices, including that of Henry Keogh and the much lesser known case of Adrian Drummond, who was wrongly accused in 2012 of an attempted abduction and was only released from jail in September 2015 on new appeal laws based on fresh and compelling evidence, which Channel 7 and Mr Archer had campaigned strongly for.

The importance of such an institution was evident in the UK recently when the conviction of Andrew Malkinson for a rape he did not commit was referred by Britain's CCRC to its Court of Appeal, where the conviction was resoundingly quashed. He spent 17 years behind bars pleading his innocence and refusing to admit to the crime to secure a release on parole—something quite disturbing which is still applied in South Australia, notably in the matter of Aboriginal man Derek Bromley, who was Australia's longest serving prisoner, now approaching 40 years.

The Legislative Review Committee was stacked with Labor members then as it is today, so I would not be confident that such a legal and human rights body would garner their support, especially when we know about the decades-long corruption under their watch within our own criminal justice system that sheltered a known fraud, none other than the state's chief forensic pathologist, Dr Colin Manock, who oversaw hundreds of criminal cases. That this wilful blindness is still shown here just to protect reputations and avoid monumental scandal is disgraceful and a blight on our criminal justice system. Not one person at the top has even bothered to respond to national television programs exposing this level of sanctioned corruption.

While I will not be supporting this bill, my colleague has already indicated her support for it, even though SA-Best supported the 2019 bill. That is her prerogative and something that we can do in our party when we see fit. I also note the about turn done by the Greens. It disappoints me that the Hon. Robert Simms has not followed the same learned path as his predecessor, the Hon. Mark Parnell. The Hon. Mark Parnell, in 2019, expressed his concerns that nobody was held accountable for lengthy delays in delivering judgements and quality control issues, noting the support the appellate court received from the Legal Services Commission.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:58): I thank honourable members for their contributions on this matter. Yesterday, I received correspondence from the Chief Justice of the Supreme Court that addresses some of the concerns that have been raised by honourable members in their reflections from the Bar Association or the Law Society. It might be worth at this juncture, before we go into committee, reading out that letter, because I think it will be useful for the purposes of the debate. Yesterday, the Chief Justice wrote in relation to the Supreme Court (Distribution of Business) Amendment Bill 2023:

I refer to the letter of 17 August sent to you by the President of the South Australian Bar Association (the SA Bar), which reflects the letter of 5 July 2023 sent to the Honourable Connie Bonaros and the Honourable Frank Pangallo.

I address first the SA Bar's contention that there is no interstate statutory provision or convention to the effect that the President of the Court of Appeal 'is removed' from decisions on the assignment of Appeal Judges to the General Division. The submission, so put, is calculated to avoid acknowledging that there is no statutory provision anywhere in Australia which requires the Chief Justice to obtain the consent of the President of the Court of Appeal to the assignment of an Appeal Judge to hear a trial in the General Division. The current provisions in the Supreme Court Act 1935 (SA) (the Act), requiring the consent of the President, which were introduced by the previous government with the support of the SA Bar, are unique in that respect. No sound reason for the adoption of those peculiar provisions has ever been provided. Indeed, when I have discussed the provision with Chief Justices and Justices of Appeal around Australia, they have expressed surprise at the inclusion of that provision.

In any event, contrary to the assertion, and as you know, the proposed amendment does not 'remove' the President from the process of making an assignment. In fact, the President's involvement will be legislatively protected. The proposed s 47(1) of the Act provides that the Chief Justice may only assign a judge of the Court of Appeal to hear a matter in the General Division 'after consultation with the president of the Court of Appeal'. Moreover, s 47(1a) of the Act provides that the consultation must take place in accordance with a protocol approved by the Judges at a Council of Judges held pursuant to s 16 of the Act. The SA Bar's letter ignores these provisions. It is incorrect to suggest that the proposed amendment 'has potential to undermine the operation and integrity of the Court of Appeal' when the protocol to which the Chief Justice must adhere is one under the control of all of the Judges of the Supreme Court.

The unspoken premise of SA Bar's letter is that the Court of Appeal and the Supreme Court are two distinct courts. There is only one Supreme Court of this State recognised by the Australian Constitution. It is the Supreme Court which has a General Division and an Appeal Division, the principal judicial officer of which is the Chief Justice. It is not workable to allow the head of a division of any court to veto the rostering decisions of its principal judicial officer.

The President's letter claims that the SA Bar is not aware of difficulties faced by the Court in allocating a judge to hear a trial in the trial division. Pointing to examples of when Appeal Judges have sat in the General Division when it has been convenient for them to do so does not prove that there have been no such difficulties. Experience has demonstrated that the division of the Supreme Court has reduced flexibility in the assignment of judges and accordingly reduced the capacity of the Court to hear matters expeditiously.

My request for this amendment was made after experiencing substantial difficulty in 2022 in the assigning of a permanent judge of this Court to hear a long and complex matter in this Court. The statutory provisions were a substantial impediment to assigning a judge of this Court to hear that matter.

I had no choice but to first appoint auxiliary judges from the District Court, who for reasons which need not be elaborated on here, were unable to continue with the hearings. Then I personally assumed the management of the case against the objections of counsel who sought that I recuse myself, until one of the Appeal Judges accepted an assignment to hear some of the preliminary questions of law and admissibility which had to be dealt with before the trial could commence.

My request for these amendments is strongly supported by the Judges of this Court. That support was given after substantial consideration and discussion. As a result of that discussion, all of the judges of the Court accepted that they have an ethical duty to put the needs of the Court, as a whole, as paramount.

The proposed amendment carefully limits the Chief Justice's power to those occasions when the assignment of an Appeal Court is necessary because of the unavailability of a Judge in the General Division. Only the Chief Justice sufficiently understands the needs of the Court as a whole to be able to make that final decision.

Finally, as to the suggestion that debate on the Bill should be adjourned to allow consultation with 'stakeholders', it is my view that this is unnecessary. The persons who best know the intricacies of listing matters in this Court are the Judges of this court. Necessarily the SA Bar can only have a limited understanding of the pressures and exigencies which apply in distributing the Court's workload. The final responsibility for performing that task lies with me as Chief Justice.

I do not have many years left to serve in the office of the Chief Justice. I do not wish to leave my successor statutory provisions which, in their current form, provide an unworkable division of responsibility, and cause of friction, in the important task of assigning Judges to attend to the work of the Court in a way which best serves the community.

Yours sincerely,

The Honourable Chris Kourakis

Chief Justice of South Australia.

I seek leave to table the letter to which I have just referred.

Leave granted.

The Hon. K.J. MAHER: That said, I think that substantially answers many, if not all, of the questions that have been raised in the formal submissions that have been made, and I look forward to the committee stage of this bill.

The council divided on the second reading:

Ayes 11

Noes 8

Majority 3

AYES

Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Martin, R.B. Ngo, T.T. Pnevmatikos, I.
Scriven, C.M. Simms, R.A.

NOES

Centofanti, N.J. Game, S.L. Henderson, L.A.
Hood, B.R. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. (teller) Pangallo, F.

PAIRS

Wortley, R.P. Girolamo, H.M.

Motion thus carried; bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: I appreciate—and you will pull me up very quickly if I divert to a second reading speech—that it would be incumbent on me as the Liberal Party spokesperson to make a few comments as to why our position has altered from that which I gave in my second reading speech in May, largely for the reasons outlined by honourable members, particularly the Hon. Mr Pangallo, who has quoted directly from correspondence from both the Bar Association and the Law Society, which clearly supported this legislation in 2019. When we formed our position in May we took the bill at face value, which I suppose demonstrates that you cannot trust the Labor Party in government, or in opposition for that matter.

In relation to the fact that those two organisations have not been consulted by the government, I think that is a fairly stark thing to place on the record. The Court of Appeal is one of the great achievements of the former Attorney-General and Deputy Premier, the Hon. Vickie Chapman, in her term in which she was a prolific legislator, and to try to undermine this piece of legislation is a very sad day in politics indeed. Be that as it may, I want to place those comments on the record.

The Hon. R.A. SIMMS: I think briefly I should indicate the Greens' position on this bill. Like the opposition, I think it is fair to say we have been on a bit of a journey in terms of considering this piece of legislation. Initially, my office attended a briefing in relation to the bill. When we became aware of concerns, we supported a deferral of the bill for the eight-week recess. I have read the representations from the Bar Association and the Law Society and also engaged with the government to better understand the implications of the bill.

I note the letter that the Attorney-General has tabled in the parliament today. In particular, I note that the Chief Justice, which is not a political role but an independent role, has refuted a number of the claims that have been made and, on that basis, the Greens have formed the view that we will support the bill. I do want to make it clear that we support the Court of Appeal; we supported its creation. We see that as playing a very important role. But on the basis of the information that has been provided by the government, and of course the information that the Chief Justice has provided through the letter that has been tabled in the parliament, I am persuaded that it is in the interests of the administration of justice in our state that we see this legislation pass.

Clause passed.

Clause 2.

The Hon. C. BONAROS: I have some questions for the Attorney-General in relation to the clauses of the bill.

The CHAIR: It would have been better at clause 1, but is there anything specific at clause 2 or 3?

The Hon. C. BONAROS: I did not know if you were calling for general remarks about the bill or questions relating specifically to the bill, so I apologise for that, Chair.

The CHAIR: Okay. What are your questions?

The Hon. C. BONAROS: My first question to the Attorney is relating to some protocols that he referred to. I have a document before me dated 24 August 2022. I understand that was a protocol which effectively is a set of rules which have been developed to underpin this legislation and set out guidance, if you like, as to how these decisions will be made. Can the Attorney expand on that and confirm whether indeed that is what we are talking about with those protocols?

The Hon. K.J. MAHER: I thank the honourable member for her question. Yes, that confirms my understanding. I understand a version of the protocols has already been agreed by the judges of the court, as was I think alluded to in the letter from the Chief Justice.

I am informed the protocol requires the Chief Justice to inform the President of the reasons why the judges of the general division are unavailable and requires the Chief Justice and the President to discuss the availability of judges and any reason why it might not be appropriate to sign any or a particular judge of the Court of Appeal to a proceeding. The protocol allows the President to respond to any work implications that may arise due to the assignment by suggesting an alternative arrangement or request an acting judge to replace the judge on the Court of Appeal who is assigned to a particular proceeding.

I am informed the protocol requires, if the Chief Justice proposes to exercise what is proposed in the bill before us, the Chief Justice will provide the President with written reasons for the decision and table those reasons at the next monthly judges' meeting.

The Hon. C. BONAROS: Thank you to the Attorney for that clarification. The Bar Association also makes reference to data and opinion that it has drawn on in reaching its position. Is it fair to say that neither the Bar Association nor indeed the Law Society has access to internal data that would have formed the basis of this bill and that the Bar Association and the Law Society would not be privy to?

The Hon. K.J. MAHER: That is my understanding, that there would be data and information that the Supreme Court, when making this request, would have used in deciding that this was something that they wish for and that, in my understanding, the Bar Association or the Law Society may not be privy to.

The Hon. C. BONAROS: Is it an ordinary process, Attorney, for you to consult with—indeed, there have been other instances in this case where much more important pieces of legislation have previously sailed through without taking into account the views of the Law Society or the Bar Association, and we have been subject to criticism over some of those pieces of legislation. Is it ordinary for you to consult with the Law Society or the Bar Association on matters that, even in the opposition's words, were previously described as pretty straightforward pieces of legislation that deal with administrative matters as opposed to substantive changes?

The Hon. K.J. MAHER: I thank the honourable member for her question. I think it is fair to say that not every single bit of legislation or regulation will be subject to extensive consultation with the Bar Association or the Law Society, but that does not mean that those organisations do not put their views forward, as they have in this case.

The Hon. C. BONAROS: I am going to refer to a paper written in April 2021. It is called The New Court of Appeal for South Australia (published by the Australian Academy of Law). It is authored by the Hon. Justice Mark Livesey. Chair, if I can, I will table that document as well. It states:

In addition, it might be said that it is undesirable for judges to only be concerned with appellate work, rather than the dynamics and pressures associated with trial work. Indeed, the experience of conducting trials as counsel does not necessarily translate into a firm appreciation of the demands of conducting trials as a judge. Routine experience in trial work is sometimes said to be of considerable importance in the effective disposition of appellate work.

As well, it could be said that appellate judges may become too specialised and insufficiently exposed to the full range of judicial work, whether this be trial work or other first instance decision-making.

Are they considerations that also fed into the basis for this legislation, or was it purely of an administrative function? As well, is there something to be said for those comments that I have just referred to?

The Hon. K.J. MAHER: I thank the honourable member for her question. The administration of the court, as outlined in the letter from the Chief Justice, is a primary driver for this legislation. It is true that I have had many representations made to me about the desirability of appellate judges hearing trials at first instance—understanding the pressures, what comes with making rulings immediately on evidence, and also being in situations where you have contact with victim survivors of crimes and understand the ins and outs of day-to-day trials. But that is not what is being proposed here, this is about the administration of the court and the ability for judges of the Court of Appeal to hear trials in the manner that is proposed.

The Hon. F. PANGALLO: Attorney, did you discuss this amendment, this bill, with the President of the Court of Appeal?

The Hon. K.J. MAHER: I thank the honourable member for his question. I provided and asked for views from both the Chief Justice and the President of the Court of Appeal. I received a response from the Chief Justice on behalf of the Supreme Court which is consistent with the procedures outlined in the guidelines for consulting with the judiciary.

The Hon. F. PANGALLO: That was not actually my question. I asked whether the Attorney discussed it with the President of the Court of Appeal, not with the Chief Justice. Did the Attorney reach out to the President to gauge his views on this, or has in fact the President of the Court of Appeal written or contacted you, your office or your department about this proposed amendment?

The Hon. K.J. MAHER: I thank the honourable member for his question. I consulted with the head of the jurisdiction of the Supreme Court, which includes both the Court of Appeal and the general division, the trial division, which is the Chief Justice. I have had a number of meetings, very productive meetings on a whole range of issues, with the President of the Court of Appeal. I do not recall discussing the substantive amendment that was being proposed here. I may have, at one of our meetings on very different matters, given an update of the progress of this but, from my memory, I think that would be it.

The Hon. F. PANGALLO: Just to clarify that: you are saying that you actually did raise—

The Hon. K.J. MAHER: No.

The Hon. F. PANGALLO: —this proposal—no? So you have not raised it with the President of the court. Can you explain why you have not?

The Hon. K.J. MAHER: To reiterate: I sent correspondence initially to both the Chief Justice and the President of the Court of Appeal. I received a response from the Chief Justice as the head of the Supreme Court.

The Hon. F. PANGALLO: Did you ask why you did not receive a response from the President of the Court of Appeal? I find it odd that you would get one from the Chief Justice but you would not get one from the President of the Court of Appeal.

The Hon. K.J. MAHER: I thank the Hon. Mr Pangallo and I understand that the Hon. Mr Pangallo might find that odd; however, it is entirely consistent with the guidelines from a communication with the judiciary, legislature and executive, adopted by the Council of Chief Justices of Australia and New Zealand on 23 April 2014. So although the honourable member may find it odd, it is entirely consistent with guidelines that the Council of Chief Justices adopted nearly a decade ago.

The Hon. R.A. SIMMS: Just to be clear, by way of clarification, that is because the Chief Justice is the head of the court, which includes the appeal court; is that the case?

The Hon. K.J. MAHER: Yes.

The CHAIR: I would like questions or contributions on clauses 2 and 3. I will allow this contribution but then we are going to move on.

The Hon. C. BONAROS: Just to be crystal clear, I referred to the protocol document earlier and it is fair to say, I think—or I am asking for your confirmation—that all of the judges of the Supreme Court made up a meeting of judges, including the President, in formulating those protocols. So everybody had input into the process of formulating those protocols that we know underpin this legislation.

The Hon. K.J. MAHER: That is my understanding, that it would be all judges of the Supreme Court, those of the appellate division and those of the general division, who would have been able to make contributions to that.

The CHAIR: Are there any further contributions with anything to do with clauses 2 or 3? The Hon. Ms Lensink, what are you referring to?

The Hon. J.M.A. LENSINK: The Attorney-General, I think in his summing-up, referred to a particular case that had potentially triggered this legislation as a form of efficiency measure, if my memory serves me correctly. Is he able to elaborate on that and provide us with some more detailed data to underpin this measure?

The Hon. K.J. MAHER: I think what the honourable member is referring to is my reading of the letter from the Chief Justice of the Supreme Court. I will read it again because it does not refer to the name of a particular case but the paragraph relevantly states:

My request for this amendment was made after experiencing substantial difficulty in 2022 in assigning a permanent judge of this Court to hear a long and complex matter in this Court. The statutory provisions were a substantial impediment in assigning a judge of this Court to hear the matter.

It refers to 'a matter' but it does not name the matter in that correspondence.

The Hon. J.M.A. LENSINK: I thank the Attorney for that explanation. Is he aware whether that is an isolated case or is he aware of others, and is he able to provide some statistical data to inform the reasons for this?

The Hon. K.J. MAHER: I do not have that data in front of me but that was one that was referred to. I have no doubt there would be others that fall into that category as well.

The CHAIR: The Hon. Mr Pangallo, you are referring to what in clause 2 or 3?

The Hon. F. PANGALLO: Sorry?

The CHAIR: In clause 2 or 3, what are you referring to? What is your question?

The Hon. F. PANGALLO: Clause 1 actually, as well.

The CHAIR: No, we have passed clause 1.

The Hon. F. PANGALLO: Can I ask the Attorney-General whether the Chief Justice can appoint the President of the Court of Appeal to another court to hear a matter?

The Hon. K.J. MAHER: I am informed that is not envisaged in the legislation. I am advised that under clause 3(1)(1)(b) it talks about the Chief Justice having consultation with the President of the Court of Appeal to assign and authorise a judge in the Court of Appeal. Because it refers to the President of the Court of Appeal and then later on refers to a judge, it would not be envisaged that that would be the president.

The Hon. F. PANGALLO: You are saying it is envisaged that that is not likely to happen, but technically it could happen, could it not?

The Hon. K.J. MAHER: I guess that if someone took a very different reading and statutory interpretation to the words that appear on the page, sure.

The Hon. R.A. SIMMS: In relation to clause 3 and the arrangements relating to the distribution of business, it has been suggested during debate in relation to this bill that it is the government's intention to undermine the independence of the Court of Appeal. Is that the government's intention and can the minister outline why he does not consider that to be the case?

The Hon. K.J. MAHER: I can answer that very simply: no, that is not the government's intention. This bill does nothing to undermine the Court of Appeal, the rule of law or the sun coming up, as has been suggested. This is simply about the distribution of work within that one court—the Supreme Court.

The Hon. F. PANGALLO: Can the Attorney-General provides examples that exist that justify this amendment?

The Hon. K.J. MAHER: I refer to the answer I gave the Hon. Michelle Lensink in the letter by the Chief Justice.

The Hon. C. BONAROS: In relation to clause 3—and there is nothing like robust debate in this place amongst colleagues, albeit over what many would consider an insignificant piece of legislation—is there anything in that clause that would warrant an about turn or a reversal of the position in terms of support for the original piece of legislation that was passed under the former government?

The Hon. K.J. MAHER: I think that question has a couple of parts. It maybe goes to what the Hon. Robert Simms just asked. There is nothing in this that seeks to undermine how the Court of Appeal works. As the honourable member characterises it, this is a relatively simple, straightforward, administrative bill about the operation of two divisions within the Supreme Court and making sure it can operate as effectively as possible.

The Hon. C. BONAROS: Chair, with your indulgence, also in relation to the distribution of business and the concerns that the opposition has now raised, if she is willing to answer, I have a question for the Leader of the Opposition and that is: did she or anybody else from the Liberal government seek comments and feedback from the Law Society or the Bar Association regarding concerns around distribution of business prior to that information being made available to this place post the last sitting week?

The Hon. J.M.A. LENSINK: Sorry, if I understand the question, and the honourable member may wish to—

The Hon. C. Bonaros: Did you consult with them prior to forming your position on this bill?

The Hon. J.M.A. LENSINK: I think the honourable member is aware that we did not consult in May. I am not quite sure what her point is on discovering that significant stakeholders have concerns—that would just hide under the carpet and pretend that that does not exist. If she wants to raise this issue again, I think a number of us were quite disturbed by the way in which she addressed members of the Legislative Council when she made her contribution. I will leave it at that.

The Hon. R.A. SIMMS: In relation to clause 3, does the minister have any information in relation to the process that is adopted in other jurisdictions in this regard?

The CHAIR: I will let the Attorney answer this question, but then I am going to put that clause 2 stand as printed. These all appear to be at clause 3.

The Hon. K.J. MAHER: I am advised that there is no statutory provision anywhere in Australia which requires the Chief Justice to obtain consent of the President of the Court of Appeal for the assignment of an appeal judge to hear a trial in the general division, which would make how we currently have the law before this bill an anomaly in Australia. What all jurisdictions do have in common is that the Chief Justice is the principal officer and responsible for the administration of the Supreme Court and its divisions.

Clause passed.

Remaining clause (3) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:32): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 11

Noes 8

Majority 3

AYES

Bonaros, C. Franks, T.A. Hanson, J.E.
Hunter, I.K. Maher, K.J. (teller) Martin, R.B.
Ngo, T.T. Pnevmatikos, I. Scriven, C.M.
Simms, R.A. Wortley, R.P.

NOES

Centofanti, N.J. Game, S.L. Henderson, L.A.
Hood, B.R. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. (teller) Pangallo, F.

PAIRS

Bourke, E.S. Girolamo, H.M.

Third reading thus carried; bill passed.

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