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28 Mar 2017

Statutes Amendment (Judicial Registrars) Bill – Committee Stage 1

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: Honourable members would be aware that I have two sets of amendments in the alternative. I only propose to move one set of amendments, which is [McLachlan‑2], which is seeking to amend the bill to make the appointment of judicial registrars permanent. I will not be proceeding with [McLachlan-1].

Honourable members will recall that in my second reading speech I put forward the alternatives, but after discussions with members of the crossbench and taking soundings from the Law Society and the Bar Association, it was decided by the Liberal Party to pursue the permanent appointment which, in our view, has regard to core stakeholders in respect of this bill and is the preferred course of action.

I will make a few comments revisiting the Liberal Party position. Temporary appointments or fixed terms of judicial officers are controversial within the legal fraternity or community, as they raise issues of the judicial officer’s independence, and as it may create conditions or at least the appearance of conditions that might inhibit the judicial officer from an inclination to act without fear or favour. It is as much about the possibility that it may inhibit the judicial officer’s inclination as much as it is also about the appearance of the conditions or the appearance that the judge or judicial officer may not be able to act in good conscience.

As I said, we have taken into account the views of the Law Society and the Bar Association. Our amendments are congruent with their formal position. It is our belief that it is in the public interest that our amendments prevail. We do not see it as a question of cost, as they will be appointed in any event. We have listened carefully to the government’s arguments, both at the second reading stage and the summing up of the second reading.

The government’s arguments seem to be simply based on the fact that some other jurisdictions do it and that it is a good idea, but there is no real philosophical underpinning as to why they should limit the appointments to a set period. At the end of that period, you would think that the person who has relied on this position for income will become increasingly, almost by definition, inclined to worry about their reappointment. The process of reappointment is quite critical.

In the second reading summing up, the minister drew comparisons to auxiliary judges, but I point out to members of the chamber that auxiliary judges are appointed under the Judicial Administration (Auxiliary Appointments and Powers) Act. It is specified in that act that they have to be retired as a judge of the High Court, Federal Court or Supreme Court of a state or territory. It is a very different situation to what we are debating today.

Those officers will have already served a long career. They will not be reliant upon the good graces of the government, and it would be my understanding that they would already be receiving a pension from the government, so their income is not held captive to the state. I also note that the government has mentioned other jurisdictions which have permanent appointments. Some do, some do not. I would be interested in exploring during the committee stage the process of reappointment and the consultation that will take place.

Our system of justice cannot be distilled down to simply factors of cost, although I question why cost is potentially an issue here. It seems to me that we want seven years because if they are not performing, the current system of removing a judicial officer is too difficult and they will not be reappointed. I do not see any other philosophical rationale for not making them permanent; in fact, by not making them permanent, it is an implied criticism of our current system of taking complaints against judicial officers.

Again, I am drawn to the words of Kirby and the Forge case. It was a minority judgement, but it is as much about the perception of independence and impartiality as the actual technicalities of whether or not they are independent or whether the Chief Justice, as he raises in his letter, can manage the issues of independence.

Judicial independence, in my view, does not exist to serve the other two branches of the executive, nor is it designed to serve the judiciary itself. It is more designed to protect those who are being governed rather than the governors. With those words, I would like to give an opportunity for other crossbenchers to have a say and then I have a few questions for the government.

The CHAIR: Can you clarify: are you going to continue with set one of your amendments?

The Hon. A.L. McLACHLAN: Not set one, only set two, which is in relation to deleting the restriction on seven years’ appointment and replacing it with those that allow permanent appointment.

The CHAIR: Minister, do you have anything to say with regard to that? No. The Hon. Mr Parnell.

The Hon. M.C. PARNELL: I will put the Greens’ position on the record. It would be no great surprise for members to know that the Greens have consistently advocated for judicial independence. It is one of the fundamental building blocks of our legal system. We want to make sure that all people who are making judicial and even quasi-judicial decisions are as independent as possible from the executive.

In thinking about this bill and the debate, it reminded me of a year that I spent in the United States as a 21 year old, when one of the young people with whom I was working took me for dinner at their place, I think it was. In the front yard of the house was a corflute, and the corflute said, ‘Vote 1’—this kid’s dad—’for judge.’ As a law student in Australia, I never really got used to the idea that judges would be up for election and, presumably, if they were perhaps too lenient on criminals, they would not get re-elected in certain places. The tougher you were, the better your chance of keeping your job.

We are not talking here about the popular election of judges, but we are talking about people making judicial decisions whose tenure is dependent on re-appointment by the government of the day. I know that as this bill was being debated, there were two possible schools of thought. One was to accept time-limited tenure but make sure these judges only did a very limited range of work, in particular not contested matters. The other school of thought was to not have these people tenured but have open-ended appointments and allow them to do any kind of work. That is ultimately the amendment that the Liberals have put forward, and the Greens are persuaded by those arguments.

I do not know if we had this last time, but certainly all members were provided with a copy of a letter from the Chief Justice of South Australia, the Hon. Chris Kourakis, and I just want to put it on the record. In his short two-paragraph letter, he points out that the bill, if enacted, would ‘substantially benefit the administration of justice’. He points out:

There are many procedural applications which needlessly take the time of J udges, M asters and Magistrates which could be more usefully spent on matters of substance.

I do not disagree with any of that. He then goes on to say:

Under the provisions of the Bill, the Chief Justice, Chief Judge and Chief Magistrate will control the matters which a Registrar may determine. Moreover, the Chief Justice, Chief Judge and Chief Magistrate must be consulted before the appointment of a Judicial Registrar to th eir respective Courts. Together tho se provisions sufficiently ensure the independence of the Registrars notwithstanding their limited tenure.

With all due respect to the Chief Justice, I disagree with that. I do not think that just consulting the head of each court about appointments and giving them the power to allocate work guarantees judicial independence. I understand it is the intention that, mostly, the work that these judicial registrars will be doing will be uncontested, high-volume, routine matters, but it is not limited to those matters and, if we are not going to limit it to those matters, the Greens’ position is that we do not want to limit tenure.

I will pose a question that the minister might consider: are there implications for payroll, if you like, for government coffers, in whether a person is employed on a fixed-term contract or whether it is more open-ended? In particular, will any retainers or particular fees be different? Is there anything in this bill that means that these people will be paid more or less under each of the models—the government’s model for fixed tenure and the opposition amendments for open-ended tenure? I put that on the record, but the position the Greens have landed on is that we support the Liberal set of amendments.

The Hon. A.L. McLACHLAN: I have a few questions on the Chief Justice’s letter, which was raised by the minister in his summing-up, which are probably more appropriately asked at clause 1. Minister, was this letter from the Chief Justice requested by the Attorney?

The Hon. P. MALINAUSKAS: I am advised that it was.

The Hon. A.L. McLACHLAN: Did the Attorney write a letter to the Chief Justice setting out his request? If so, will he table a copy of that?

The Hon. P. MALINAUSKAS: I am advised that that was not in writing, no.

The Hon. A.L. McLACHLAN: Is the minister aware whether the Attorney-General sent to the Chief Justice the Liberal amendments? Were they the subject of the discussion between the Attorney and the Chief Justice?

The Hon. P. MALINAUSKAS: I am advised that the Attorney-General did indeed consult with the Chief Justice regarding the amendments.

The Hon. A.L. McLACHLAN: I note for the benefit of the chamber that the nature of the amendments has not been raised. Is the Chief Justice, in writing this letter on his letterhead, speaking on behalf of his brother and sister judges, or would that have otherwise come in his capacity as chair of the Courts Administration Authority?

The Hon. P. MALINAUSKAS: That would be a matter for the Chief Justice. I could not possibly speak for the Chief Justice or say in what capacity he was writing the letter.

The Hon. J.A. DARLEY: I indicate that I will not be supporting these amendments for the following reason: I think any person offering themselves for appointment will fully understand that the job is for seven years, and it would have no influence on their decisions.

The Hon. D.G.E. HOOD: I indicate that Family First also will not be supporting the amendments. I think the letter from the Chief Justice should be considered very seriously, and I am not suggesting members have not done that; I am sure they have, but I think the Hon. Mr Darley has said it well. The time frame involved is considerable, and although I would acknowledge that it is a theoretical possibility, I find it unlikely that in practice it would affect one’s decision.

The Hon. A.L. McLACHLAN: I have set out the Liberal Party view. The letter is brief and does not go into other matters which one would imagine should have been raised in relation to this bill. Basically, my reading of it is very different from that of my honourable friends on the crossbench from Family First and Xenophon.

Basically, he is saying that he is going to do his best to manage the independence, but it is not, in my view, an endorsement of the bill nor a criticism of the opposition’s amendments, for what it is worth, but we will have to divine a meaning from these two brief paragraphs.

In any event, it does not convince the Liberal Party to be swayed from pursuing its amendments. Ultimately, it is for the parliament to decide the full conditions surrounding judicial appointments, not necessarily the Chief Justice, although I appreciate that he is going to do his best, should this bill pass unamended, as we would expect him to do.

Clause passed.

Clauses 2 to 10 passed.

Clause 11.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–2]—

P age 5, line 9 [clause 11, inserted section 16A(2)]— Delete ‘term of appointment (which must be for at least 7 years), the’

The committee divided on the amendment:





Dawkins, J.S.L.

Franks, T.A.

Lee, J.S.

Lensink, J.M.A.

Lucas, R.I.

McLachlan, A.L. (teller)

Parnell, M.C.

Ridgway, D.W.

Stephens, T.J.

Vincent, K.L.

Wade, S.G.


Brokenshire, R.L.

Darley, J.A.

Gago, G.E.

Gazzola, J.M.

Hanson, J.E.

Hood, D.G.E.

Hunter, I.K.

Maher, K.J.

Malinauskas, P. (teller)

Ngo, T.T.

Amendment thus carried.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–2]—

P age 6, lines 1 to 3 (inclusive) [clause 11, inserted section 16A(10)]— Delete subsection (10)

Amendment No 3 [McLachlan–2]—

P age 6, after line 14 [clause 11, inserted section 16B]— After subsection (1) insert:

(1a) A Judicial Registrar must retire from office on reaching the age of 70 years (but, on so retiring, may continue to act in the office for the purpose of completing the hearing and determination of proceedings part-heard before retirement).

Amendment No 4 [McLachlan–2]—

P age 6, line 17 [clause 11, inserted section 16B(2)(b)]— Delete paragraph (b) and substitute:

(b) retires from office; or

The remaining amendments are consequential.

Amendments carried; clause as amended passed.

Clauses 12 to 21 passed.

Clause 22.

The Hon. A.L. McLACHLAN: I move:

Amendment No 5 [McLachlan–2]—

P age 9, line 9 [clause 22, inserted section 7AA(2)]— Delete ‘term of appointment (which must be for at least 7 years), the’

Amendment No 6 [McLachlan–2]—

P age 10, lines 1 to 4 (inclusive) [clause 22, inserted section 7AA(10)]— Delete subsection (10)

Amendment No 7 [McLachlan–2]—

P age 10, after line 15 [clause 22, inserted section 7AB]— After subsection (1) insert:

(1a) A Judicial Registrar must retire from office on reaching the age of 70 years (but, on so retiring, may continue to act in the office for the purpose of completing the hearing and determination of proceedings part-heard before retirement).

Amendment No 8 [McLachlan–2]—

P age 10, line 18 [clause 22, inserted section 7AB(2)(b)]— Delete paragraph (b) and substitute:

(b) retires from office; or

The principle is the same. Whilst it may not technically be consequential, the council has indicated that it is in favour of permanent appointment.

Progress reported; committee to sit again.

See full session on Hansard

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