Tuesday 01 November, 2016

Mr TARZIA (Hartley) (11:25): I rise also today to support the Statutes Amendment (Courts and Justice Measures) Bill 2016 and to make a few comments highlighting the proposed amendment to part 7 of the Solicitor-General Act 1972 before it goes to the other place. As we have heard, the bill in question was introduced in late September of this year and it makes a series of changes to certain acts, being the Bail Act 1985, the Criminal Law Consolidation Act 1935, the Evidence Act 1929, the Solicitor-General Act 1972, the Summary Procedure Act 1921 and the Youth Court Act 1993, amongst others. I note that most of these changes are small in nature and they are for efficiency measures, in many respects, to better match up with other acts.

The bill, as we have heard, seeks to make changes to various acts in several ways, beginning with the Bail Act, after requests by the Chief Magistrate, where there is a proposed widening of the class of person who can witness a bail agreement or guarantee of bail to include a registrar or deputy registrar. Further to a request by the Chief Justice and the Chief Magistrate, I note that part 3 of the Criminal Law Consolidation Act 1935 and the Evidence Act 1929 is proposed to be altered as well.

From a request, I believe by parliamentary counsel, part 6 of the Legislation Revision and Publication Act 2002 has been proposed to be amended to allow for recognition of electronic publishing of documents, and we have heard why that would be a good idea. Part 5 of the Evidence Act 1929, as requested by the Attorney's senior legal officer, I understand that there is to be an alteration to the current restrictions preventing unrepresented accused from personally cross-examining a victim, to include an offence of recklessly or intentionally causing harm to be consistent with the Criminal Law Consolidation Act, and so forth.

I want to speak briefly about the alteration proposed to the Solicitor-General Act 1972. We have heard that the Solicitor-General is, in fact, otherwise known as the second law officer of the state, with a budget of some $240,000 or so per year. The Solicitor-General is obviously appointed by the Governor with certain conditions and it is an extremely important role to fulfil for the state. We know that the next Solicitor-General will be appointed soon. We are not sure who that will be, but I have no doubt that it will be a highly qualified member of the state's legal circle. It might even be a barrister from one of the reputable Adelaide chambers, maybe Hanson Chambers, for example. Whoever it is, I have no doubt that they will do a fantastic job.

The Solicitor-General, being a senior statutory officer appointed by the Governor and the second legal officer after the Attorney-General, represents the Crown in civil proceedings and must provide independent high-level work and high-level advice to the Attorney-General. The departmental staff, in their very important work, also support the Solicitor-General. If the serving Solicitor-General is able to do an upstanding job of independently serving the law and the people of this state, I think we need to ask why they should be forced to leave after 10 years. I would have thought that a capacity-based assessment would be better than the imposition of a compulsory retirement.

I believe the role needs absolute unfettered discretion. There cannot be any potential distraction because this is an independent position. I understand that there may be an intention to perhaps cut costs where possible but, after that, what happens? As we have seen from time to time, often people who fulfil this role later end up in the judiciary. My real concern is: what happens when the government is a party to legal issues?

If the Solicitor-General became a member of the bench and the government was included in legal proceedings, that person may be involved, albeit on the bench. We have seen, unfortunately, just by the nature of what the government does, that it often has to go into litigation. This calls into question this concept of whether we should have capacity-based assessment and whether that should be for life or whether this person, whoever it is, should be forced to retire after a certain amount of time.

An independent judiciary is one of the most important—if not the most important—part of our system of governance in South Australia. It provides a balance but also a check on the legislative and executive arms of government. Under the Australian Constitution and the South Australian constitution, the judiciary is in fact independent of the legislature and the executive. The judiciary has obligations to the community to determine cases impartially and according to the law, whether they are between individuals or between a citizen and the state.

To do this, these sorts of positions and the judiciary must be able to exercise their judicial functions and their other functions without interference from the executive or the legislature. I believe the community must be able to approach the courts, even when legal action is against the government, and know that the government cannot interfere in a particular case because judicial independence ensures that the community can conduct legal action without fear or favour.

As the member for Bragg has pointed out, we on this side of the chamber will be supporting this legislation, but I would respectfully encourage the Attorney to rethink this part. We have not been given arguments as to why the bill seeks to provide a fixed term of 10 years. However, I hope that I have provided a little bit of perspective and context as to why some of us on this side have reservations about that. I look forward to following the debate in due course as it progresses through this place and the other place.