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- 4 September 2002
Courts Legislation Further Amendment Bill
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Page: 4524
Bill received and read a first time.
Motion by the Hon. Henry Tsang agreed to:
That standing orders be suspended to allow the passing of the bill through all its remaining stages during the present or any one sitting of the House.
Second Reading
The Hon. HENRY TSANG (Parliamentary Secretary) [5.16 p.m.]: I move:
That this bill be now read a second time.
This bill proposes miscellaneous amendments to legislation affecting the operation of the courts of New South Wales. Firstly, it is proposed to amend the Liquor Act 1982 to provide for licensing magistrates who are acting magistrates to be paid on a daily basis, in accordance with the terms of their commissions, rather than under the Statutory and Other Offices Remuneration Act 1975. Acting magistrates are paid a daily rate. Accordingly, if an acting magistrate is not sitting, he or she is not paid. A number of acting magistrates currently hold commissions as licensing magistrates under section 8 of the Liquor Act. The Liquor Act does not presently provide for licensing magistrates who are acting magistrates to be paid on a daily basis. A consequential amendment to the Statutory and Other Offices Remuneration Act is proposed to exclude from schedule 1 acting magistrates who are licensing magistrates.
It is also proposed to amend the Local Courts Act in relation to leave entitlements for magistrates. Pursuant to section 25 of the Local Courts Act, appointees as magistrates who are public servants at the time of the appointment preserve their accrued long service, sick leave and recreation leave entitlements. The section also preserves superannuation entitlements. However, there is no proposal to alter this aspect of the section. The existing determination of magistrates' leave and related provisions defines "service", for the purpose of calculating these entitlements, as including periods of service under the Public Sector Management Act. Under those amendments, any public servants appointed in future as magistrates would be paid out all extended and recreation leave entitlements at the time of their resignation from the Public Service, as they would if they were resigning from any other position, and there will be no right to carry forward sick leave entitlements from previous service as a public servant.
The proposed amendment to the Supreme Court Act 1970 would remove the present restriction on long and complex matters being referred to arbitration. Parties engage in time-consuming argument about the length and complexity of their matters rather than focusing on the substantive aspects of the case that may or may not make it suitable for arbitration. This amendment will bring the arbitration provisions of the Supreme Court Act 1970 into line with those applying in the District Court and Local Court, which were amended to achieve this result last year. Also, minor technical amendments are required to facilitate the introduction of electronic filing of applications in class 1, 2, 3 and 4 matters in the Land and Environment Court.
Provisions in the legislation dealing with the signing, sealing or stamping of process need to be addressed, and will be supplemented by changes to the court rules to permit the court to deal with electronic filings. The amendments contain a provision validating anything done under the electronic filing system after 1 July and prior to these amendments commencing. Finally, the bill was amended by the Government in the Legislative Assembly. This amendment pertains to the Local Courts Act 1982 to enable a judge of the District Court to be appointed to the present vacancy in the office of Chief Magistrate of the Local Court and to retain all remuneration, leave, pension and other entitlements of a District Court judge.
A District Court judge is qualified for appointment as Chief Magistrate because he or she is, or is eligible to be, admitted as a solicitor or barrister of the Supreme Court of New South Wales. However, the doctrine of incompatibility of office would preclude a District Court judge from holding both appointments simultaneously without specific legislative authority. This amendment provides that the District Court judge may retain his or her commission as District Court judge and all of the corresponding rights and entitlements, but the judge will not exercise the jurisdiction of the District Court. An exception is made to permit the judge to finish off any matters currently before him or her. I commend the bill to the House.
The Hon. GREG PEARCE [5.22 p.m.]: The Opposition will not oppose the bill. Generally speaking, we do not have any objection to a number of the changes that, we are told, are supported by the relevant chief judges and magistrates. However, I am concerned about the urgency of the legislation. It appears to be another example of the Government's arrogance and rorting of the system. This is a jobs for the girls. A former member of this House, Pat Staunton, must be replaced to take up her new industrial relations job. This outrageous, urgent bill was introduced to enable the Government to make that happen. Debate on this bill follows some fairly outrageous flouting of conventions and procedures.
We saw the bitter Hon. Jan Burnswoods object to the Hon. Dr Brian Pezzutti making a statement when tabling a report. That is very rare in this House. It was shameful and mean-minded. We then saw the Minister for Mineral Resources, and Minister for Fisheries and the Minister for Police crossing between the chair and the table. Tradition in the Westminster system is aimed at maintaining the dignity of the House. Unfortunately, Ministers in this Government have such little regard for the forms and traditions of the House that they are prepared to abandon the proper processes. The bill is another instance of the Government abusing the proper processes of the Westminster system. The Opposition does not oppose it.
The Hon. IAN COHEN [5.24 p.m.]: The Greens generally support the bill, but we have reservations about the use of acting magistrates and judges. Some initiatives are certainly supportable. For instance, the bill intends to amend the Land and Environment Court Act to facilitate electronic filing. This will enable it to utilise its new electronic filing system to the public. Generally, the Greens have grave reservations about the use of acting magistrates and judges. Commentators on temporary judicial appointments have condemned the practice, arguing that it defies fundamental principles. In 1998 Keith Suter, former Vice-President of the New South Wales branch of the Australian section of the International Commission of Jurists, argued that the appointment of acting judges is an infringement of the community's right to an independent judiciary. This practice is best described as the Executive exercising influence or, worse still, control over the judiciary in defiance of the fundamental principle requiring separation of those powers.
Acting judge appointments are known in some circles of the Sydney bar as auditions, and not without reason. The regrettable appearance is that the Executive is trying out potential judges to assess their acceptability, and the fear is that acting judges will be tempted to decide cases in favour of the Government to secure permanent appointments to the bench. Acting judges have loyalties and duties that are acceptable in a judge. Keith Suter gave the example of the Crown Prosecutor or Public Defender acting as a judge. He or she would judge cases conducted by colleagues, not former colleagues. The same problem arises when barristers act as judges. Solicitors will appear before them whom they hope will continue to brief them. Clearly, acting judges are faced with conflicts of interest in these cases. Justice Michael Kirby of the High Court attacked the practice, saying that it imposes a psychological pressure on the independence of those judges. He said:
They should be free from inducements and protected by tenure which is the fundamental guarantee of real independence.
We understand the Government uses acting judges to clear the backlog of cases. However, the Greens believe the answer is to appoint more permanent judges and magistrates, and to keep acting judges and magistrates to the absolute minimum. Another amendment specifies that the Bail Act will be amended to allow bail undertakings to be given to authorised officers of the Department of Corrective Services. The Government briefing note specifies that this power was inadvertently removed during amendments to the Bail Act in 2000. The aim of the amendment is to ensure that defendants do not experience unnecessary delays when being released on bail ordered by the court. The Greens support any amendment that reduces delays for people being released on bail. The department should ensure that enough authorised officers are available to take such bail undertakings so that defendants are not disadvantaged because of lack of officers. The Greens do not oppose the remainder of the amendments contained the bill.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.27 p.m.]: The bill is the result of doubts raised about the validity of appointment of judges as acting judges. We must consider two issues. First, are judges appointed as acting judges in another jurisdiction qualified? At present the various Acts governing appointment of judges require that a person be a legal practitioner of at least seven years standing. This has caused some confusion, because it has been assumed that judges retained their prior status as barristers or solicitors. This would seem self-evident, but it is proposed to make the qualification definition include a person who holds or has held judicial office. Second is the doctrine of incompatibility of office. In a nutshell, this means you cannot do two jobs at once. This causes a problem when a judge of one jurisdiction, for instance the District Court, is appointed as an acting judge in another, such as the Supreme Court. He or she may return to the other jurisdiction once the acting position ends. The bill will spell out that there is no incompatibility. These sensible amendments are supported by the Australian Democrats.
The Hon. PETER BREEN [5.28 p.m.]: The bill provides for various amendments to legislation affecting the operation of New South Wales courts. They are minor amendments, but I place on record my concerns about some aspects of the adversarial system of justice as it operates in the courts. The amendment to the Bail Act is a sensible provision that was inadvertently removed from the legislation by the passing of the Bail Act amendments in 2000. Under the amendment, authorised Corrective Services officers have the power to take bail undertakings from prisoners, thus avoiding the need for prisoners to go back to court when their bail arrangements are in place.
Amendments to the Liquor Act and the Statutory and Other Offices Remuneration Act clarify the method of remuneration of acting magistrates in the Licensing Court and places them on the same footing as Local Court acting magistrates. I support the amendments as they provide a level playing field for acting magistrates in each jurisdiction. As to the contributions of the Hon. Ian Cohen and the Hon. Dr Arthur Chesterfield-Evans, there has been a change in policy in New South Wales. Former Attorney General Jeff Shaw achieved what I believe is a remarkable milestone in the courts when he scrapped the discredited policy of appointing acting judicial officers from the ranks of barristers and solicitors. These days acting magistrates are appointed from the ranks of retired judges and retired magistrates and many potential conflicts and injustices have been removed from the operation of the courts as a consequence.
Another amendment contemplated by the bill will allow for the appointment of a judge of the District Court to the position of Chief Magistrate without compromising the conditions of appointment of the judge, particularly his or her right to return to the District Court. A precedent was set for this provision with the appointment of the Hon. Barry O'Keefe, formerly a judge of the Supreme Court, as Commissioner of the Independent Commission Against Corruption. One of the terms of his appointment was that he be allowed the opportunity to return to the Supreme Court. This provision mirrors that precedent. This amendment supports the principle of security of tenure for members of the judiciary, and I commend the amendment to the House.
Similarly, another amendment to the Local Courts Act removes an anomaly that exists between magistrates appointed from a public sector background as opposed to those from the private sector. This amendment prevents magistrates appointed from the public service carrying forward leave entitlements which put their remuneration in a different category to that of other magistrates. The employment conditions of all members of a particular court and their remuneration ought to be the same where they perform the same judicial function. I note that the inequality that exists between masters of the Supreme Court and other judges is long overdue for review. Why should masters who do the same work as judges be employed on less favourable conditions and remuneration?
I urge the Attorney General to address this anachronism in the Supreme Court by appointing the masters as judges, which is their appropriate status. The last area I want to cover in the reach of the Courts Legislation Further Amendment Bill concerns the amendment to the Supreme Court Act which allows long and complex matters to be referred to arbitration. I note that the amendment has the support of the Chief Justice, but I wonder whether law consumers would agree that long and complex matters-indeed, any matters-ought to be referred to arbitration. My own experience is that arbitration is just one more costly step on the tortured path to justice in New South Wales, a path that only lawyers will tread with any satisfaction.
Recently I had an extraordinary case which I brought to the attention of the Chief Justice by letter two days ago. In that case, Mr X was parked at an intersection near his home when another vehicle, driven by Mr Y, ploughed into the back of his vehicle. The impact was so severe it demolished the rear of Mr X's vehicle and his car seat broke off its mountings. Several vertebrae in his neck were damaged. Proceedings were commenced in the District Court. The defendant's insurer admitted liability and offered to settle for $200,000. An arbitrator subsequently awarded Mr X $400,000 and the insurance company then appealed this decision. A District Court judge decided that Mr X was a malingerer. The judge overturned the decision of the arbitrator, found for the defendant and awarded costs against Mr X.
I am pleased that the Motor Accidents Authority now handles claims on behalf of motorists injured after 5 October 1999. The case I have referred to proves that the role of judges as protectors of citizens is a lost ideal in the New South Wales legal system. When the judiciary acts in this capricious way, it is simply acting as another branch of the Executive Government. I always advise people to follow the biblical imperative and settle their disputes before going to court. Mr X has been effectively ruined by the District Court judge's decision and the question of an appeal needs to be considered. To this end, I have asked the Chief Justice to advise me of the statistical success rate for appeals from a decision of a District Court judge. I look forward to obtaining those figures. In conclusion, the bill covers a number of amendments which are supported and will improve the operation of the courts in New South Wales. I commend the amendments to the House.
The Hon. RICHARD JONES [5.34 p.m.]: I support this bill, which has been rushed through the House primarily because of speculation about the appointment of a District Court judge as Chief Magistrate on the resignation of Patricia Staunton, who has been appointed to the Industrial Relations Commission. Patricia Staunton was a very good member of this House. It was predicted that she would rise to greater things, as indeed she has. I understand that Justice Derek Michael Price will be appointed Chief Magistrate. There has been speculation about this and the Government decided to pass the legislation quickly so that the appointment can be effected promptly. I support the speedy passage of the legislation.
The Hon. HENRY TSANG (Parliamentary Secretary) [5.35 p.m.], in reply: The Government thanks the Hon. Greg Pearce, the Hon. Ian Cohen, the Hon. Dr Arthur Chesterfield-Evans, the Hon. Peter Breen and the Hon. Richard Jones for their contributions and support. I would like to address the concerns raised by the Hon. Ian Cohen. The Government has a policy of using only retired judicial officers, not practising solicitors or barristers, to undertake acting judicial positions. This policy is maintained to ensure that there is no actual or perceived conflict of interest. It has the added benefit of ensuring that the acting judicial officers have the experience and expertise to immediately and fully contribute to the jurisdiction to which they are appointed. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
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