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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
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Legislative
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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
Parliament Index |
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JUDICIAL ADMINISTRATION (AUXILIARY APPOINTMENTS AND POWERS) (DEFINITION OF JUDICIAL OFFICE) AMENDMENT BILL
Adjourned debate on second reading.
The Hon. IAN GILFILLAN: The Judicial Administration (Auxiliary Appointments and Powers) Act 1988 already allows, and has allowed for the past 11 years, for temporary appointments, in effect short-term contracts, for judges, masters and magistrates. A similar authority for short-term appointments of judges, masters and magistrates is found in the Supreme Court Act 1935-I believe that a relevant amendment was passed in 1981-and the District Court Act 1991. The bill extends the same or similar provisions to commissioners of the Environment, Resources and Development Court. The commissioners are not judges, although my reading of the ERD Court Act 1993 is that they do in some cases exercise judicial power as defined by the High Court.
I would like the Attorney-General to clarify whether that is in fact the case. However, unlike Supreme Court judges, District Court judges and masters, ERD commissioners cannot be appointed on short-term contracts unless they are also appointed on a part- time basis, a situation which is covered by schedule 1 of the ERD Court Act. If this bill is approved by parliament then, according to the government, there will be greater flexibility in responding to the workload of the ERD Court and preventing backlogs of cases when permanent commissioners are ill, on leave, or otherwise unavailable.
In researching this bill it was interesting to go back to Hansard of 1988 and read the contributions of the Hon. Trevor Griffin when the principal act was being debated. The idea of making short-term appointments to the bench was, according to the Hon. Trevor Griffin, `open to abuse because it could mean that a lawyer who needed a bit of work and had the necessary qualifications in terms of service could be appointed as a magistrate. The magistrate could preside over a very difficult case and do something which did not meet with the approval of the government but which need not necessarily be contrary to the principles of justice, and a government could then refuse to renew the appointment or refuse to make another appointment at some time in the future of that person who is meant to be in the so-called pool'. That is from Hansard of 15 November 1988, pages 1494-95. It carries, as one predicts, the sort of lucid logic which one comes to expect, and still continues to expect, from the Attorney-General.
Mr Griffin also quoted the then views of the Law Society and the then Chief Justice, both of whom were opposed to the appointment of temporary judges, for similar reasons. I would like to take the opportunity now of asking the Attorney-General whether he has changed his views and, if so, why? If the original act was abhorrent to him and the legal profession in 1988, why is he now seeking to widen its application? I do not criticise the Attorney-General merely because he has apparently had a change of heart some time over the past 11 years. Indeed, I would be disappointed if he had not changed any of his views in that time. In fact, he has shown evidence that indeed in other areas he has. We should all be open to persuasion and perhaps convinced by a good argument or a change in circumstances or facts that might justify a different attitude towards a proposed statute.
At the time, we supported the principal act, in 1988, and, much to the disappointment of the Hon. Trevor Griffin, we did not support his amendments which sought to restrict the pool of potential appointees merely to current and retired judges. However, since 1988 we have had a great deal of experience in South Australia of the casualisation of the work force. Many, if not all, senior government appointments, and a host of junior appointments, are now made by way of short-term contract. This may add up to economic efficiency in the eyes of the bean counters in the government but it takes a heavy toll on the social fabric of our society.
I take this opportunity to use just one example. Children who are the victims of severe child abuse sometimes, unfortunately, have to be taken away from their natural parents and placed in the care of the minister. This means, in effect, that they are placed in a foster home or perhaps a series of short-term foster homes. Not only are their home placements often short term but their principal carer, a social worker, representing the minister, is also with them on a very short-term basis. In fact, appointments of social workers on the long-term care team at Family and Youth Services are made for contract terms as short as two months. Being on the long-term care team for a mere two months is not just incongruous or curious, and inconvenient for the worker, it is also, much more importantly, adding to the difficulties of the individual child, who has one short-term contract worker after another introduced and then replaced.
This policy prevents the child building up any sort of relationship of trust, which is so necessary for their recovery after child abuse. However, this government's blind commitment to so-called economic efficiency is so great that it goes on insisting on short-term contract placements in sensitive areas like child abuse. That policy is without doubt causing more long-term problems for child victims in future years. The policy almost constitutes a child abuse in itself.
I mention this as an example of how this government, the Liberal government, in blind pursuit of an ideology is committed to the notion of short-term contract placements, even in the most sensitive and crucial areas of expertise, where time is needed to build up relationships of trust and confidence. The need to build up trust and confidence in a client applies not only to social workers working with abused children but it is also true for judges, and even commissioners appointed to the Environment, Resources and Development Court. Judges do not necessarily require the trust of, say, accused criminals who come before them, but they do require the trust of the community in general. However, it is much harder for the community to have faith in the legal system when its judges or commissioners are here one day and gone the next.
That sort of staffing policy does not and cannot inspire faith and trust in the judicial system. I expect that, in response, the Attorney-General will say that the provisions of the principal act did not cause any problems over the past 11 years or that the capacity to appoint acting judges under the Supreme Court Act or District Court Act has not been abused, and I hope that that assurance will be received.
However, with the 1990s almost behind us, in 1999 the Democrats are reluctant to have any more categories of employees placed on short-term contracts. We do not want to promote delays in the Environment, Resources and Development Court, but we remain to be convinced that creating yet another category of short-term contract employees is the best response due to perceived problems in dealing with the court's lists. The exercise of judicial power must be carefully separated from the exercise of political powers, as the Attorney-General himself pointed out when he was on the opposition benches in 1988. The appointment of temporary judges is open to abuse by the political process, and this is the reason why we have the doctrine of the separation of powers.
On several occasions the High Court has considered the separation of powers in the constitution when dealing with the issue of who may exercise judicial power. I have not had time, and nor has my office had time, to research and extract the relevant cases. However, the High Court's view is that, in order to safeguard the separation of powers, judicial power may be exercised only by judges who are appointed on a permanent basis so that their potential removal is not subject to the political process. Conversely, persons who are appointed purportedly to exercise judicial power and who are not appointed on a permanent basis are, in fact, not judges or at least cannot exercise judicial power. Any purported exercise of that power would arguably, therefore, be invalid.
I suspect that this High Court view may apply only to judges exercising the judicial power of the Commonwealth as distinct from the states. However, the point is clearly made and should be properly taken by us in the state jurisdiction, as well. I am sure that, with the resources at the Attorney-General's disposal, the correct legal view could be confirmed to this Council. I mention this because I would be disappointed if we are debating the possibility of widening the ambit of a statute when the statute itself may be at risk of being struck down as constitutionally invalid.
I note that the Law Society has changed its official position on this issue since 1988. In a letter to me dated 20 September 1999, the society President, Ms Lindy Powell, notes briefly that this bill `would seem to be a sensible and reasonable provision of flexibility to enable auxiliary appointments to be made for a short period of time and the society supports this amendment'. However, given the response to the principal act 11 years ago, from the then liberal opposition and the then Chief Justice, the concerns which I have raised today indicate that I still require some convincing to support this measure right through the processes of this chamber. However, I look forward to the Attorney-General's explaining-as he said he would-why my fears are groundless. In any case, we certainly will take very seriously on board the Attorney-General's response to the matters that I have raised. I indicate that the Democrats will support the second reading of the bill so that it can be dealt with in the committee stage. However, I indicate that I will reserve my final decision until hearing argument from the Attorney-General.
The Hon. J.F. STEFANI secured the adjournment of the debate.
Ian Gilfillan's questions were answered and the Bill passed two days later: 21 October 1999
