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16 Feb 2017

Statutes Amendment (Judicial Registrars) Bill

The Hon. A.L. McLACHLAN ( 15:59 ): I rise to speak to the Statutes Amendment (Judicial Registrars) Bill. I speak on behalf of my Liberal colleagues who grace this chamber. I inform the chamber that the Liberal Party will be supporting the second reading of this bill. The bill amends various acts in order to create a new judicial office with the grand title of judicial registrar in the Supreme Court, the District Court, the Magistrates Court and the Youth Court.

The stated purpose of this initiative is to produce efficiencies in the courts. A significant foundation stone of the initiative is that the judicial registrars will be judicial officers, but with limits on their judicial discretion. As the great poet wrote in his reportedly last play, ‘Heaven is above all yet; there sits a judge that no king can corrupt.’

The Liberal opposition’s misgivings about this legislation are birthed from a desire to ensure judicial officers remain independent and are seen to be so by the people of this state. The government’s focus is on making the administration of justice more efficient. We do not resist this pursuit by the Attorney-General in the other place, but any such objective must not come at the expense of the rule of law and degrade the independence of the judiciary.

I acknowledge it is not always easy to balance the cost of funding a justice system when there are so many competing financial calls upon the government against the expectations that, living in a functioning democracy, there will be the appropriate structures in place to ensure the rule of law.

Nevertheless, I cannot help but observe for the benefit of the honourable members that, in my three years as a member of the council, there has been too much legislation conceived by the socialist collegium that is the Labor executive, which has been designed to appeal to rank populism rather than from a purer motive of a deep and abiding respect for the principles underpinning the rule of law.

The Liberal opposition will move to amend the bill in committee to ensure the independence of the judicial registrars. The Liberal opposition has had regard to the submission of the Law Society when coming to this view. We are not orphans when it comes to our opinions on this bill.

It is anticipated by the government that the role of the judicial registrar will be to handle less complex legal matters. This will, in turn, improve the efficiency and effectiveness of the administration of justice in this state. The bill provides that judicial registrars will be judicial officers of the courts to which they are appointed, ranking between special justices and the relevant courts, magistrates, masters or judges, as the case may be. They will exercise jurisdiction set out in the rules of the relevant court, except for the power to impose a sentence of imprisonment or detention.

Other restrictions on their powers will be prescribed in the regulations. We have not been provided with draft regulations. The bill requires that they must be a legal practitioner of at least five years’ standing. Their appointment will be for a period of at least seven years. The bill also provides for the removal of a judicial registrar for neglect of duty or dishonourable conduct following recommendation of the Attorney-General and concurrence of the head of the court to which the registrar was appointed.

The government has indicated in its second reading speech that it is expected that judicial registrars will handle uncontested, high volume and less complex proceedings, as well as matters identified as likely to resolve. The government has reasoned that, without much science, this will allow the other judicial officers of the Magistrates, Youth, District and Supreme courts to devote more of their time to complex matters, as well as, by implication, to the criminal and civil case load of the courts. The Attorney-General in the other place indicated that this bill will enable some matters that are too complex to be dealt with by a special magistrate in the Magistrates Court to instead be dealt with by judicial registrar.

I note that the Attorney-General, in a letter dated 4 November 2016 and addressed to the member for Bragg in the other place, stated:

The appointment of judicial registrars would also offer the Youth Court greater flexibility in the use of its judicial resources. On the commencement of the Statutes Amendment (Youth Court) Act 2016 and this bill, matters in the Youth Court could be allocated to either the judge of the court, the magistrates of the court or a judicial registrar.

The pursuit of efficiencies cannot be worshipped exclusively at the expense of the rule of law. The government asserts that the bill provides a strong framework for the independence of the registrars from the executive branch. The Liberal opposition disagrees with this assertion. We believe that the registrars should either be appointed permanently or, in the alternative, not be empowered to hear contested matters. We have forged amendments accordingly.

Judicial appointment tenure and remuneration are critical to underpinning judicial independence from the executive. Judges should never feel that if they do not please the government their tenure may be at risk. As Lord Denning said, ‘Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: “The judge was biased”.’ The people of South Australia are entitled to have their issues judged by someone who not only is, but also appears to be, independent and without bias.

The Liberal amendments seek to ensure judicial independence. There are two sets of amendments. The first requires that if judicial registrars are appointed for a fixed term they can only hear uncontested matters. The second set requires that if judicial registrars are appointed with no fixed tenure, then they have the power to hear contested matters. These amendments are targeted at ensuring the independence of the judiciary is maintained by providing either security of tenure or ensuring judicial registrars without the same are not determining contested matters. I ask the council to give kindly consideration to one of the two options.

In rising to speak on this bill, I do not seek to criticise the Attorney-General’s pursuit of efficiencies in the justice system. I wish him well. But in doing so he cannot cut corners and weaken the immutable principles that underpin our democracy. If the Attorney-General seeks efficiencies, then I draw his attention to the submission of the Law Society that sets out a pathway for just what the Attorney-General is seeking. To us, on the opposition benches, this appears, on its face, a safer path to find than that which our Attorney-General seeks.

If the Attorney-General should listen, he may also hear the cries of the legal profession for greater commitment to the courts infrastructure. Mr Harris, the former president of the Bar Association, has written:

One must al so ask the question of why the G overnment is prepared to spend money like a drunken sailor on the glittering new arts and entertainment precinct adjacent t o P arliament H ouse, the Festival T heatre and Adelaide Oval and yet consistently fail to support the administration of justice in this state .

Lack of funding is not at the heart of this issue but rather it is a lack of commitment to the third arm of government.

I call upon the Labor government to reinvigorate its commitment to the administration of justice. Efficiencies are not an end in themselves. A healthy democracy is the real prize. A healthy democracy demands judicial officers who are protected from the passions of the day and can, without reservation, stand up for what is right.

Debate adjourned on motion of Hon. T.T. Ngo.

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