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7 Jul 2016

Judicial Administration (Auxiliary Appointments and Powers) (Qualification for Appointment) Amendment Bill

Adjourned debate on second reading.

(Continued from 9 June 2016.)

The Hon. A.L. McLACHLAN ( 15:41 ): I rise to speak on the Judicial Administration (Auxiliary Appointments and Powers) (Qualification for Appointment) Amendment Bill. I speak on behalf of the Liberal members of the chamber. The Liberal Party maintains its opposition to this bill. Its view remains unchanged from the debate in the other place. It remains unconvinced there is any necessity for this bill. It is also concerned that the passage of this bill has the potential to impose foreign judges upon unwilling litigants. We will support the second reading of the bill and explore the impacts of the bill at the committee stage. The Liberal Party’s primary opposition to this bill is that it has been presented to the chamber with no cogent rationale from the government for it to have been drafted.

The provisions of the bill are simple. The bill seeks to amend the Judicial Administration (Auxiliary Appointments and Powers) Act 1988. Our courts have occasionally needed to appoint auxiliary judges to hear certain cases. The need may arise where there is a conflict of interest or to cover the leave arrangements of judicial officers. The act sets out the categories of individuals who are eligible to be appointed as an auxiliary judge. Included are retired High Court judges, retired or currently sitting Federal Court judges, interstate Supreme or District Court judges and judges from the Supreme Court or Court of Appeal from New Zealand.

The intent of our parliament was clear when enacting this legislation. Auxiliary judges should only come from a limited class of individuals who have the requisite experience and competence to ensure the satisfactory administration of justice to our citizens. The bill before us, if enacted, will expand the categories of individuals who are eligible for appointment as a judicial officer to those who hold judicial office in a jurisdiction outside of Australia. It should not be lost on the members of this chamber that, if this bill is enacted, the appointment of auxiliary judges from overseas can occur without further reference to this parliament. Appointments will be by the Governor on advice, with the concurrence of the Chief Justice. No other state or territory has this provision.

The Attorney-General’s rationale for this bill is twofold. Firstly, it is that it will facilitate a judicial officer from another jurisdiction with particular expertise, perhaps of a technical nature, to be appointed to hear a case. The Attorney-General has confirmed in a letter to the shadow attorney that over the past five years only two appointments have been made from outside of South Australia. This raises the serious question of why this legislation is required, as there has been such limited need for such appointments to date. Even if a foreign judge has certain expertise, they would also have to be very conversant with our laws as well as the practices and procedures of our judicial system, together with the culture and expectations of our people. This rationale by the Attorney‑General is fanciful and has all the hallmarks of a retrofitted justification for a misguided moment of blue-sky thinking.

The second rationale proffered by the Attorney-General is that it will facilitate judicial exchanges in certain circumstances. The appropriate circumstances—and that is the term used—remain very unclear. I would like to know what circumstances are envisaged by the government to be set out in the summary of the second reading debate so that they may be examined at the committee stage.

It is suggested by the government, in keeping with the fantasy theme, that the exchanges may assist in improving our processes and procedures. I request that the minister also set out how the value to the state of such exchanges will be measured or assessed. Will the judicial officer be required to submit a travel report? What legislative or other requirements are available to require a judicial officer to provide an account of any exchange?

The Attorney-General has made it very clear in the debate in the other place that this legislative proposal was not conceived by him. I quote the Attorney-General from Hansard:

I got a letter from the Chief Justice. I have read the letter. I thought, ‘Well, okay, let’s try to help the chief , ‘ and I have prepared a bill (which is a pretty simple little bill), which does just what the chief has asked. I have brought it here. I hope it passes, but I am not here doing my own business. I am h ere as an emissary of the court. That i s it.

That is not what I would call an inspiring and rousing piece of advocacy for this bill. I remain unpersuaded that this bill has any value to anybody, other than a few judges seeking exciting overseas experiences.

It is also difficult to see if it would contribute in any positive way to the lives of our citizens. It appears to be bereft of any obvious redeeming features. The Attorney-General has set out in the other place that the Chief Justice is, in turn, responding to a proposal of the Bar Association, which related to forging closer ties with the nation of Singapore. It appears that the conception of the need for the bill came from a conga line of positive thought bubbles. I remind members in passing that it is my understanding that the judicial system of Singapore still accommodates the death penalty.

Further, even if exchanges are arranged, it is unclear what matters a foreign judge would be hearing. Surely South Australians have a right to an experienced judge versed in our law. Will the foreign judge seek the consent of the litigating parties before he or she hears a matter? What skill gaps do our judiciary have? In my view, our judges are held in high esteem by the community and I believe they are world class.

Why should South Australians have their matter adjudicated as part of an exchange program? Surely our citizens should be spared being guinea pigs for a judicial version of time share, where their difficulties are used to assist in the learning for foreign judges, but the litigants themselves do not get the benefit of an experienced local judge. We should not seek to use our citizens as the subjects of legal experiments. The rights of our citizens should not be abrogated or diminished, simply to allow an international judicial class to have some exchange time.

The only other information I can garner on the operation of this bill, if enacted, is from the comments of the Chief Justice on ABC radio. His stated reason for the legislation dramatically differs from the Attorney-General’s rationale in the other place, as well as the minister’s second reading speech in this chamber. Listening to the chief’s comments placed me in an even greater state of confusion as to why this legislation is necessary.

From what I understand from hearing the interview, the following is pertinent: the Chief Justice has ambitions that the Supreme Court will be able to deal with high-value commercial litigation, which has an international aspect. In managing consulting circles, this would be considered a blue-sky concept. My question to the government is: what deficiencies exist in our extant arrangements that prevent the Supreme Court from handling such cases today? The Chief Justice went on to acknowledge that there are no actual plans in place for an international judge to sit on cases of that kind.

My question for the government is: what would be the definition of an international judge? Is it simply a judge from another jurisdiction, or would they be required to have specialist skills and experience? The Chief Justice said the exchange will allow our judges to sit on well-known international courts around the world. My question for the government is: what is the title and the jurisdiction of the well-known international courts? Do these courts currently allow South Australian judges to sit on them?

The Chief Justice indicated, if I understood his comments correctly, that he wanted international disputes involving South Australian exports to be arbitrated in South Australia, that the courts would support our export industries by becoming international. I ask the government to set out what will be required to set up an international commercial court in this state. I further ask what the projected cost would be to undertake this endeavour? The Liberal Party does not accept that the government has provided sufficient or adequate justification for the passage of this bill through the chamber.

The second reading of the minister appears at odds with the comments of the Chief Justice. The cruel irony is that at the same time as seeking to provide a legislative framework for judicial exchange—or as has been suggested by others, an opportunity for judges to escape the ravages of the winter months—our core buildings are crumbling and their systems antiquated. The bill is a very ugly symbol. It encapsulates all that is wrong with this tired government, which is seemingly no longer capable of summoning up the energy to disguise its contempt for the administration of justice in this state. I think it is apt to quote Julius Cohen from an article he wrote in 1956 for the Cornell Law Review on legislative law. He stated:

That the legislative process reflects its share of the irrational in man, no one can doubt. There is, to be sure, a great deal of selfish ‘logrolling’ and ‘back-scratching’; many legislative judg ments are unmistakably visceral and on ‑the- spot; much of the formal machinery for deliberation is facade; there are, undoubtedly, legislators who equate ‘public policy’ with private group interest no matter how narrow or selfish it might be—there is, in other words, a darker side to the picture. But it is unreal to assume that in the operation of the process one can find no evidence of thought and deliberation, no effort to obtain reliable information with which to illumine and guide policy decisions, no soul ‑ searching or zeal for the just settlement of conflicting claims within the framework of larger community goals. Fortunately, there are lawmakers who do not share Thurman Arnold’s hyperbole that ‘the best government is that which we find in an insane asylum ‘, and that its aim should be ‘to make the inmates of the asylum as comfortable as possible, regardless of their respective moral desserts. ‘

I submit to honourable members that, at present, we do not have any coherent public policy imperative to support this legislation. We should never legislate for the sake of it. Every time this parliament passes legislation it either empowers individuals or restricts their rights and entitlements. To legislate without good reason is the wide path for the legislator. We must never legislate simply on a false or weak premise.

In respect of this bill, we are being asked to pass legislation that is justified by an unclear vision that is not founded on a rational and considered plan, nor is it supported by strong financial footings. We are starved of information and are expected to legislate on merely conjecture and hunch. For this reason alone, honourable members should consider not passing this bill. As I have indicated, I seek to have the answers to my questions incorporated into the minister’s second reading summing up. I anticipate I will have more questions on the operation of the bill during the committee stage. I am unable to commend the bill to the chamber, but the Liberal Party will support the second reading.

Debate adjourned on motion of Hon. T.J. Stephens .

See full session on Hansard

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