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Statutes Amendment (Judicial Registrars) Bill

Committee Stage

In committee.

(Continued from 28 March 2017.)

Clause 22.

The ACTING CHAIR ( Hon. T.T. Ngo ): We are at clause 22, and the Hon. Andrew McLachlan has moved his amendments. Do other members wish to speak to this clause?

The Hon. K.L. VINCENT: I want to clarify for the record (and I have spoken to the mover of the amendments to clarify this position) that Dignity will be supporting the government on this particular issue. We certainly see the merit of both positions, but have decided to maintain our original position of not supporting the Hon. Mr McLachlan’s amendments in this particular instance.

The Hon. A.L. McLACHLAN: I thank the Hon. Ms Vincent. As I understand it, I will not have the numbers for passing these amendments.

The committee divided on the amendments:

Ayes10

Noes11

Majority1

AYES

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.

Wade, S.G.

 

 

NOES

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.

Vincent, K.L.

 

Amendments thus negatived; clause passed.

Clauses 23 to 33 passed.

Clause 34.

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

Amendment No 9 [McLachlan–2]—

P age 12, line 22 [clause 34, inserted section 13I(2)]— Delete ‘term of appointm ent (which must be for at least  7 years), the’

Amendment No 10 [McLachlan–2]—

P age 13, lines 18 to 21 (inclusive) [clause 34, inserted section 13I(10)]— Delete subsection (10)

Amendment No 11 [McLachlan–2]—

P age 13, after line 32 [clause 34, inserted section 13J]— 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 12 [McLachlan–2]—

P age 13, line 35 [clause 34, inserted section 13J(2)(b)]— Delete paragraph (b) and substitute:

(b) retires from office; or

I know where the numbers lie. I thank the Hon. Mr Malinauskas for calling the division to clarify where my numbers lie; consequently, I will not be calling a division.

Amendments negatived; clause passed.

Clauses 35 to 44 passed.

Clause 45.

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

Amendment No 13 [McLachlan–2]—

P age 16, line 11 [clause 45, inserted section 10A(2)]— Delete ‘term of appointment (which must be for at least 7 years), the’

Amendment No 14 [McLachlan–2]—

P age 17, lines 5 to 7 (inclusive) [clause 45, inserted section 10A(10)]— Delete subsection 10

Amendment No 15 [McLachlan–2]—

P age 17, after line 18 [clause 45, inserted section 10B]— 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 16 [McLachlan–2]—

P age 17, line 21 [clause 45, inserted section 10B(2)(b)]— Delete paragraph (b) and substitute:

(b) retires from office; or

Amendments negatived; clause passed.

Remaining clauses (46 to 49) and title passed.

Bill recommitted.

Clause 11.

The Hon. P. MALINAUSKAS: The government has indicated its opposition to amendments filed and moved by the Hon. Mr McLachlan, including the four amendments which passed in this house on 28 March this year which amended clause 11 of the bill. The government proposes to recommit clause 11 of the bill in order to reverse the honourable member’s amendments Nos 1 to 4.

With respect to amendment No. 1, reinsert a new section 16A(2) of the District Court Act 1991, with the phrase ‘term of appointment (which must be for at least 7 years), the’. With respect to amendment No. 2, reinsert new section 16A(10) of the District Court Act 1991, which states:

A person appointed as a Judicial Registrar is, on the recommendation of the Attorney-General and with concurrence of the Chief Judge, eligible for reappointment at the expiration of a term of office.

With respect to amendment No. 3, delete from new section 16B of the District Court Act 1991 the inserted subsection (1a). With respect to amendment No. 4, reinsert new section 16B(2)(b) of the District Court Act 1991, which states ‘completes a term of office and is not reappointed’ and delete the substituted paragraph (b).

The Hon. A.L. McLACHLAN: I know where the numbers lie on the recommittal, so I thought I would take this opportunity in the proceedings to give a couple of last reflections I have in relation to this bill. I appreciate where the vote is going. I have to say that I am disappointed that the council has obviously chosen to change its mind. In my view, the rule of law in a democracy is a fragile thing and it is easily chipped away in small pieces. The passage of this bill will diminish the perceptions our citizens have of their judicial officers, that they are independent. You do not have fixed terms unless you want the opportunity, at a later date, to remove a judicial officer at the end of their term.

I know that honourable members have relied on the letter from the Chief Justice. Certainly, it forms a key part of the government’s arguments, which have proven persuasive. In my view, the Chief Justice’s letter adds nothing to this debate. It should not be treated like an epithea from the Oracle at Delphi. It is certainly, in my view, confusing as an heroic hexameter, which the oracle would provide the heroes who asked for guidance.

We do not know whether his brother and sister judges agree with the Chief Justice’s assessment. We do not know whether he considers the Liberal amendments, voted down, provide greater protections for the judiciary and the public’s perception of the same. At its highest, and this is not my interpretation, it has been interpreted as being in support of the bill that the government has put before this chamber. Like the Hon. Mark Parnell, I respectfully disagree with the Chief Justice’s view and his approach, if, in fact, that is the interpretation that can be placed on it.

In my view, we in this chamber should be the guardians of the rule of law and willing to set the standards for the people who elect us, not just rely on the missives of others. To produce a letter from the Chief Justice, based on discussions that were not recorded and which are unclear, taints this bill. I can only hope that a future government will seek to repair this damage. I oppose the motion of recommittal.

The Hon. M.C. PARNELL: Whilst we had sided with the view of open-ended tenure, we also see where the numbers are. The question that I have for the minister goes to the independence of the judiciary. It seems to me that if someone is appointed for seven years and if at the end of seven years they are not reappointed, I am wondering if there will be anything on the public record that will tell us who these people were, what decisions they made, whether their reappointment was supported or opposed by the head of their jurisdiction or, in fact, any other information about them. That is one of the dilemmas of having judicial and quasi-judicial positions subject to, effectively, the Attorney-General’s discretion.

My question is: is there any set of documents anywhere, be it the annual reports of courts or any other document, that will tell us the fate of these people who have been appointed to fixed-term positions: whether they wanted to be reappointed and were reappointed, whether they wanted to be reappointed and were not, or whether they decided that seven years was enough? How might we find out any of this information? My understanding is that freedom of information probably does not cut it because I am pretty sure there is a range of exemptions in there in relation to the courts.

The Hon. P. MALINAUSKAS: My understanding and the advice I have received is that these are decisions that are likely to be made by the cabinet and, of course, they are subject to the usual cabinet process.

The Hon. D.G.E. HOOD: I would like to place on the record that, to the best of my knowledge anyway, my office was not informed about the recommittal of this clause. I certainly have not been personally informed. I am quite surprised that we are doing it in this fashion. It seems that a member has changed their position and that is fine, I have no problem with that. An individual is entitled to do that and that sways the numbers in this case.

However, I would like to place on the record that I certainly was not informed that we would be recommitting this clause. Our position has not changed; that is, Family First’s position is that we support the fixed seven-year term and we will continue to do that. Nonetheless, if, in particular, the Liberal party and the Greens are so minded to deal with this at another time if they do not feel that they have had an adequate opportunity to consider a recommittal, then we would be inclined to support them if they should make that venture. If not, that is fine and we are happy to proceed.

The Hon. P. MALINAUSKAS: I thank the Hon. Mr Hood for his contribution and I understand exactly where he is coming from. However, I would hasten to add that I have been advised that a communication did occur with his office regarding the recommittal, or so I have been advised. Notwithstanding that, the government completely appreciates and understands the sentiments of the Hon. Mr Hood.

The Hon. M.C. PARNELL: I also thank the Hon. Dennis Hood for his offer because that is exactly how this chamber should work. If any member, for whatever reason, feels that they have been taken by surprise then, generally, what we have tended to do is to say, ‘Let’s put it off to another day,’ and I think that is appropriate. I think in this particular instance, though, the issues for and against were agitated so it was not that difficult and we do not desire to hold up the bill. I want to come back to the question that I asked. The minister’s answer was, ‘Well, we will do it the way we always do it; you know, cabinet processes, they are secret.’

People might remember when we were debating the SACAT bill and we had quite a few former tribunal members who would contact us about their experience and, honestly, with these term‑based judicial and quasi-judicial appointments, what happens is that they turn up to work on Thursday, they know their contract finishes on Friday, no decision has been made, they are not told what is going on, and then eventually on Thursday they find their name is not in the Government Gazette and they are out of a job, do not come to work on Monday, and there is no severance or anything like that. Some of the most appalling industrial practices relate to these judicial and quasi‑judicial positions; it really is appalling.

The answer that was behind what the minister said was that we will have no way of knowing. Unless someone gets dudded, and they were doing a good job, and their judicial colleagues thought they were doing a good job, but for some reason the government took set against them and effectively sacked them at the end of their term, we will have no way of ever knowing that unless the person comes out with it, which they tend not to. Most people do not want to make a fuss, they just harbour the resentment to themselves. That is a very different world to that where we know that our judges are independent, and they know they cannot get sacked except in certain circumstances like dishonesty or bankruptcy or things like that.

I think this is a bit of a slippery slope and I am not happy that we are going in this direction but, as has been said by others, we will see where the numbers are and we will be watching this new system carefully. The point I am making is that, even if we do watch it carefully, there is no way of really finding out how these positions are going to be handled and what the fate of people will be and the reasons why they are or are not appointed at the end of their fixed term.

The Hon. A.L. McLACHLAN: Just a couple of questions along the lines of the Hon. Mark Parnell. It would be my understanding, given there is a term, that there would be no legal obligation on the government to give six months’ notice that they were intending to terminate, and that technically under the law they could wait, as the Hon. Mark Parnell has said, until the last day and then say, ‘Don’t come Monday.’ Is that correct?

The Hon. P. MALINAUSKAS: My advice, through you Mr Acting Chair, is that, look, there are no provisions within the bill that specifically require a six-month notice period or anything to that effect.

The Hon. A.L. McLACHLAN: Sorry, I did not quite hear. There is no provision about notice. Should, a Chief Judge indicate—and you would assume that a judge would understand the rules of administrative fairness—let’s say a year out, give performance reports, what right of redress would these registrars have; for example, if they had a performance report six months out which they fundamentally disagreed with and which was indicating possible termination? Where would they make their application, given that their employer is the Crown and the person who is doing the review would be the Chief Judge of the relevant jurisdiction?

The Hon. P. MALINAUSKAS: My response, through you Mr Acting Chair, of course, is that you outlined circumstances regarding termination. This is not contemplating termination but rather a lack of contract renewal. They are distinct things. Your question was in the context of someone having their contract terminated. That is not what is being provided for here. The question is about a contract not being renewed and they are, of course, distinct things.

The Hon. A.L. McLACHLAN: I appreciate the distinction but the realities of life are that you would expect—and in some of the briefings on these bills it was indicated that there was no expectation that they would not be renewed. Obviously, that is not the technical position, the legal position, but the realities of any contractual position—and the members from that side of the chamber should be more well aware—are that those in contracts, more often than not, expect to be renewed and that there are performance reports particularly to give those persons an indication of whether they are doing a good job. I simply want to know: if there is a dispute between a registrar and their respective judge, where does that complaint go?

The Hon. P. MALINAUSKAS: I understand that there is scope within the act. While the act does not specifically mandate disciplinary procedures or grievance procedures or notice of non-renewal provisions, while there is nothing along those lines mandated within the act, there is the scope for that still to occur under the section of the act that provides for the conditions around the appointment taking place. My advice is that those may be the sorts of terms and conditions that would be discussed upon appointment between the respective parties.

The Hon. J.A. DARLEY: Just for the record, my position has not changed. I still support seven-year fixed terms, and my office was not told that the matter was to be recommitted.

The Hon. A.L. McLACHLAN: I think I am probably close to my last, if not at my last, to the relief of the minister. When the Chief Justice gives a concurrence—I think that is the term used in the act—what form do they take? Is it a letter format, or is it as a result of a discussion, or is there an exchange of letters between cabinet and the Chief Justice? Is the correspondence subject to FOI?

The Hon. P. MALINAUSKAS: I am advised that it will be a letter, but it will be part of the cabinet process.

Amendments carried; clause as further amended passed.

Bill reported with amendments.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) ( 16:05 :03 ): I move:

That th is bill be now read a third time .

Bill read a third time and passed.

See full session on Hansard