Tuesday 01 November, 2016

Mr TARZIA (Hartley) (12:09): I also rise today to speak to the Statutes Amendment (Judicial Registrars) Bill 2016. There is a quote that has been brought to my attention, and I wish to draw the house's attention to it. It was raised by the Law Society in its recent submission. In an address in 2007, Lord Phillips of Worth Matravers, Lord Chief Justice of England and Wales, observed:

The rule of law requires that the courts have jurisdiction to scrutinise the actions of government to ensure that they are lawful. In modern society the individual citizen is subject to controls imposed and enforced by the executive in every aspect of life. The authority to impose most of these controls comes, directly or indirectly, from the legislature. The citizen must be able to challenge the legitimacy of executive action before an independent judiciary.

I will come back to that. What is thoroughly raised in debating this kind of legislation, as the member for Bragg has pointed out, is the concept and the principles and statements concerning judicial independence, and how important it is that when one does hear contested matters. It requires a level of unfettered discretion and independence. We know that judicial independence is certainly central to the doctrine of the separation of powers. We know that the appearance of independence, no less than the reality, is extremely important, and that tenure and remuneration are crucial to that judicial independence and that it is particularly independent from the executive arm of government.

Judges in any sense should never feel that if they do not please the government of the day their salaries may be at risk. The member for Bragg has pointed out, quite importantly, that if tenure in some instances is reduced, then where we have so many cases where the government is a party to proceedings later in life they may interact again, and judges should never feel that if they do not for some reason please the government of the day, their salary may be at risk. An acting judge should arguably not be appointed to avoid making a permanent appointment—that is also a question that is raised. Part-time and probationary appointments, I agree, should be treated with much caution.

By way of background, in October the Attorney introduced the Statutes Amendment (Judicial Registrars Bill) 2016. It amends the District Court Act 1991, the Magistrates Court Act 1991, the Oaths Act 1936, the Supreme Court Act 1935 and the Youth Court Act 1993. The bill effectively creates a new judicial office of judicial registrar, but also takes a recommendation from former chief magistrate, Judge Bolton, to appoint a judicial registrar in the Magistrates Court. It extends this to appoint judicial registrars within the Youth Court, the District Court and also the Supreme Court.

The term of appointment has been mentioned to be seven years. It also allows the removal of the judicial registrar, by recommendation of the Attorney-General, for neglect of duty or dishonourable conduct. It must be with the concurrence of the Attorney and also the Chief Judge. Time and time again this word starting with an E comes up: efficiency. We have been told that these changes are put in place to create efficiencies in the courts, just like when the SACAT was brought in, allowing judicial registrars less complex proceedings with the only statute of limitation being on their inability to impose a custodial sentence. The jurisdiction for these registrars will be prescribed in the regulations and rules of the bill.

Unfortunately, I have to say that this certainly appears, at least at face value, to be a cheap judge measure, with an aim to fill positions within the courts which perhaps may be empty. Unfortunately, this government seems, time and time again, to be treating our courts and our legal system as a liability, when in fact it needs to be treating it as an asset. A transparent legal system, and a productive, working legal system, is fundamental to our democracy and to transparency in this state.

Perhaps if the government had not wasted money in other areas in the economy, by now we would have had a new courts precinct. We would not have courts in the city that, to be quite frank, are a disgrace in terms of the way that they leak. The way that some of these facilities have been mismanaged by the government is completely unacceptable. It is not good enough. Here we see another cost-cutting measure by the state government—it is not good enough.

The Law Society considers that the bill does not provide for judicial independence in the role of the judicial registrar, and nor does it encourage a high-calibre of applicants, they argue, in these positions due to the short-term nature of their positions. They also argue that the judicial registrar should be limited to considering administrative mediation and consent orders, which are uncontested matters. I note that the federal government has been using a system of judicial registrars for a number of years. These registrars have an unlimited tenure, I am told, and they hear only uncontested matters.

The point that the member for Bragg makes about terms is very effective. We would like to suggest amendments, which I imagine will follow in due course at the relevant stage, to have judicial registrars with either fixed terms for hearing only uncontested matters or no fixed tenure but with the ability to hear contested matters. I sincerely hope that the Attorney will consider these very important proposed changes. I have no doubt that, if they are not considered well in this house, they will be considered in the other place. With those few remarks, I commend the bill to the house.