Second Reading
HON ALISON XAMON (North Metropolitan) [12.25 pm]: As I was saying on the Courts Legislation Amendment Bill 2017 before the house rose last night, the jury disqualification age was recently raised to 75 years in Western Australia and it is therefore illogical to maintain the inconsistency between the age of magistrates and that of the jury. I was about to quote University of Western Australia Professor Gillooly’s submission to the Law Reform Commission of WA’s investigation into the selection, eligibility and exemption of jurors in 2010. He stated —
... ‘it is difficult to see why judges of the facts [that is, juries] should be assumed to be more capable than the judges of the law [that is, judicial officers]’.
This change is going to ensure that the Magistrates Court Act 2004 is in line with the District Court of Western Australia Act 1969 and the Judges’ Retirement Act 1937. Both those acts require judges of the District and Supreme Courts to retire at the age of 70. I appreciate the benefits to magistrates of being able to continue to hold their tenured position rather than having to be reappointed as acting magistrates on their sixty-fifth birthday and experiencing a break in tenure, because there are accompanying consequences for their accrued leave entitlements and superannuation, but it is also important and appropriate that there is not a disparity between the retirement ages of magistrates and judges. That being said, and here I go to the intent of the amendment I have placed on the supplementary notice paper, I understand that former District and Supreme Court judges can be appointed at any age as auxiliary judges under section 18A of the District Court of Western Australia Act 1969 and under section 11AA of the Supreme Court Act 1935 for periods of up to 12 months at a time. The amendments to the principal acts we are debating in this bill will not allow magistrates the option to serve in an acting capacity following their retirement if they are aged 70 years or older, so although this legislation addresses one disparity— the retirement age between magistrates and District and Supreme Court judges—it creates another. I would welcome the government’s advice about why the capacity for acting appointments of retired magistrates aged 70 years and older was not included in this legislation in the first place.
That issue aside, the Greens welcome the amendments within the bill, which are well and truly overdue. It is important that legislation is reviewed and updated regularly to ensure that it appropriately reflects and meets the needs of contemporary society. The Greens strongly believe that older Australians have equal rights to participate in social, economic and political life and that there should not be discrimination against older Australians entering or remaining in the workforce. The participation of older people in our community needs to be maximised and the contribution of their knowledge and experience should be valued. Generally, older people now remain in the workforce for longer and are active in the community to a later age. I acknowledge that remaining in the workforce is a possibility for only some older people and that it is particularly unlikely for those who have held more physically demanding positions. However, for many older Australians, it seems to be highly desirable to be able to continue in the workforce. Those of us who were born after 1 January 1957 must reach the age of 67 years before we are even eligible for the age pension, so requiring magistrates to retire before they reach this age obviously does not reflect current community expectations.
I acknowledge that our ageing population presents a challenge for current future policymakers, including challenging negative assumptions about older people and their contributions to the community. However, I think it is really important that, at the very least, we enable people, particularly, in this instance, people with great expertise, to continue working and participating in our community.
With those few words, I indicate again that the Greens will support the Courts Legislation Amendment Bill 2017. We have put up an amendment, but we are yet to receive any sort of appropriate feedback about why this issue, and the disparity that has been created as a result, has not been addressed. I look forward to being able to discuss that further in Committee of the Whole.
[Speeches and comments from various members]
Question put and passed. Bill read a second time.
Committee
The Deputy Chair of Committees (Hon Robin Chapple) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.
Clause 1: Short title —
[Speeches and comments from various members]
Clause put and passed.
Clause 2: Commencement —
[Speeches and comments from various members]
Hon MICHAEL MISCHIN: Okay; thank you.
What I propose, as the minister has provided, is that clause 2, “Commencement”, will provide that sections 1 and 2 come into operation on the day the act receives royal assent and the rest of the act will come into operation on the day after that day. Accordingly, I move —
Page 2, lines 5 to 9 — to delete the lines and substitute —
This Act comes into operation as follows —
(a) sections 1 and 2 — on the day on which this Act receives the Royal Assent;
(b) the rest of the Act—on the day after that day.
Amendment put and passed.
Clause, as amended, put and passed. Clauses 3 to 7 put and passed.
Clause 8: Schedule 1 clause 9 amended —
[Speeches and comments from various members]
Hon ALISON XAMON: I am obviously rising because I wish to move the amendment standing in my name. I draw members’ attention to supplementary notice paper issue 3, which has been slightly tweaked. I move —
Page 5, lines 10 to 15 — To delete the lines and substitute —
(1) In Schedule 1 clause 9(2) delete paragraphs (b) and (c) and insert:
(b) a person who would, but for the fact that he or she has attained the age referred to in clause 2(2)(b), be qualified to be appointed a magistrate or an acting magistrate; or
(c) a person who is a retired magistrate but has not yet attained 70 years of age,
for such period not exceeding 12 months as is specified in that instrument.
(2) In Schedule 1 clause 9(3) delete “but the period must not extend beyond when the appointee reaches 70 years of age;”.
(3A) An appointment under clause 9(2) may be extended by the Governor by instrument for a further period or periods, but that appointment can only be extended on any one occasion for such period not exceeding 12 months as is specified in the relevant instrument.
I have already spoken briefly on this matter in my second reading contribution, but I would like to elaborate on my concerns and why I have moved this amendment. The bill in front of members is a good one because it is attempting to remove discrepancies in the retirement age of magistrates and judges, making sure that the retirement age is 70 years across the board. Unfortunately, a discrepancy remains; that is, should it be deemed desirable to allow a magistrate to continue beyond the age of 70 years for a set period of time, that is simply not possible except in the case of finishing cases that they have already undertaken. That is inconsistent with existing provisions in both the District Court and the Supreme Court. As I have said, it is already recognised that judges are able to work beyond the age of 70 should it be deemed useful or desirable for the court, and, as Hon Michael Mischin said, if it is deemed that they can make a positive contribution, and it is an additional option. I was also very interested to hear the observations in the earlier questions of Hon Michael Mischin that even justices of the peace, who are far less qualified than magistrates on all things legal, are able to continue to operate in their roles beyond the age of 70. Of course, as I illustrated in my second reading contribution, even jurors, who may have absolutely no or very limited legal understanding, are able to continue to contribute beyond the age of 75.
There are good reasons for allowing this sort of flexible arrangement to be made available to the Attorney General for magistrates. Some issues come to mind, say, for a specialist court. I think of two excellent courts, the Drug Court, or the Start Court, otherwise known as the mental health court, in which a degree of expertise has been built up over a period of time. It may be that there is a delay in the appointment of an appropriate magistrate into those courts. It may be only two months; it may be 12 months. In any event, it will enable us to do exactly what is done with judges—it will enable flexibility so that if it is deemed appropriate, a magistrate could potentially be kept on for a period of time, even though they are not sitting there with existing cases, until such time as that position is made vacant. Another suggestion is that if an appointment has been made but, let us say, the person in that position suddenly needs to take maybe four months off for health reasons, the Attorney General will have the capacity to bring back from retirement, if it is deemed appropriate, a person who has particular expertise, an otherwise retired magistrate, to fill that four-month vacancy. That is good for the consistency of the court. It is basically good court management.
I do not understand the way this particular provision has been handled by the Attorney General’s office. I first raised this issue in the briefing about a year ago. I asked whether my interpretation was correct. It was confirmed that it was correct. When I asked why it had not been included, no satisfactory answer was given. It appears that such an issue had not been appropriately contemplated. At the time I was told that an amendment would not be contemplated because the Attorney General had not had time to consult and, therefore, that was the reason it would not progress. I put this amendment on the notice paper in October last year. I am going to presume that that consultation has occurred, or I am going to presume that if consultation has not occurred, the Attorney General has effectively failed to do his job. I am aware that calls were made this morning to some of my parliamentary colleagues from people saying, “Please make sure you don’t support this amendment.” Can I say that at no point has any such courtesy been extended to me. My office has been trying to get clarity around this issue from the Attorney General via the ministerial liaison officer for quite some time. I want to be very clear: I am in no way casting aspersions on the advisers, who I am sure are diligently doing their job. But this is an example of when I do not believe there has been appropriate engagement with me or my office about a very legitimate and, I would argue, important amendment that is consistent with the proposed policy of this bill. I am very unimpressed. I am going to make a comparison with the way that I was treated by Minister Papalia’s office during the debate on the Liquor Control Amendment Bill. His office showed me the utmost respect and professionalism. I do not see this as an issue with this government, but there has been a problem with the way that the Attorney General has chosen to handle this particular amendment.
I also draw members’ attention to the fact that I have circulated an updated amendment and I would like to explain the two minor amendments that I have made to it so that they are aware. The wording in front of members pretty much replicates the current wording in the acts that pertain to the Supreme Court and the District Court, but there have been two amendments. Those particular acts refer to a commission, yet the schedule to the Magistrates Court Act refers to an instrument. I originally had “commission”, but I have changed that word to “instrument”. It does not change the meaning, but it is better drafting because it is more consistent with the Magistrates Court Act. That is the first change that I have made.
The second change I have made is to incorporate proposed subclause (3A), which again has wording taken pretty much from those other acts. It makes it very clear that, if it is deemed appropriate by the Attorney General and also, obviously, the Governor, magistrates can be appointed for a 12-month period but also potentially successive 12-month periods. The concern raised during the second reading debate was that my initial amendment would limit an extension to 12 months. As such, I have corrected that to make it clear that there are multiple opportunities for a magistrate to be appointed. But I point out the irony of suggesting that perhaps my amendment was inadequate because it allowed for only one 12-month extension, when in fact the bill in front of us allows for no extension.
I ask members to consider voting for this amendment. It is consistent with the intent of the bill, which is to make sure that magistrates and judges are treated in exactly the same way. There are no additional resourcing implications for the bill, other than the fact that it will give the Attorney General additional scope to appoint people to particular roles that require high levels of expertise, if that is deemed to be desirable, whether it is a specialist court, a regional court or a court that requires extraordinary hours, such as a Sunday court. In any event, if the Attorney General does not want to appoint any of the current magistrates beyond the age of 70 years, he does not have to. This will not compel him to do anything. This will allow him and any future Attorney General the option to do that.
Hon SUE ELLERY: I am trying to figure out what the outrage is about. As far as I can tell, it is with the way that the member has been treated.
Hon Alison Xamon: It is because there has been no courtesy extended.
Hon SUE ELLERY: I have the call.
Hon Alison Xamon: You asked a question. I answered.
Hon SUE ELLERY: Through the Chair, I think the outrage is that someone from the government—it was not me; I do not know who it was—on seeing the amendment on the supplementary notice paper and knowing that this matter was coming up today, contacted members of other parties to ask them not to support the amendment. I think that is what the outrage is about.
Several members interjected.
Hon SUE ELLERY: Let us deal with one thing at a time. The government does not support the amendment. The government considered the amendment in the period between when the first version was put on the supplementary notice paper and today. It has considered the amendment and, as I set out in my second reading response, will not support it. I appreciate the amendments made over the lunch break. I indicated my concerns in my reply to the second reading debate, so I appreciate that Hon Alison Xamon has amended her original terms to address the point that I made about auxiliary judge provisions in the Supreme Court Act and the District Court Act providing unlimited extensions, so the original version would have been inconsistent across extensions. I appreciate that that problem has now been fixed in the amendment before us on supplementary notice paper 23, issue 3.
I do not consider it in any way impolite, rude, inappropriate or unprofessional for the government to seek to make contact with other parties to ask them not to support an amendment. There is nothing unprofessional about that. I reject that it is somehow unprofessional to contact other parties to ask them to consider not supporting an amendment. I do not know that there is any obligation to advise whoever has moved the amendment that the government has already indicated that it will not be supporting it and that it is trying to get other people not to support it as well. I do not see that that is rude or unprofessional in any way.
Nevertheless, the issue before the house is the amended amendment on supplementary notice paper 23, issue 3. There is still the argument that I put previously, which I will put formally now in light of the moving of the amendment. This amendment still goes beyond the government’s policy intent for this bill, which is about retirement age. I also reiterate the point I made that there is currently significant reform of the courts’ jurisdictions underway. There is already the Courts Jurisdiction Legislation Amendment Bill 2017 and further reforms of the District and Magistrates Courts are under development. From the government’s point of view, it would be imprudent to consider this amendment while those potential reforms regarding the movement of matters from the District to the Magistrates Court are being considered. That work is underway and those things are yet to be settled. Although I appreciate the amendment and the changes made since I indicated one of the issues that the government has with it, the substantive issue for opposing the amendment remains the same; that is, it goes beyond the original policy intent of lifting the retirement age, and other work is underway to reform the way in which the courts do their business and we do not want to pre-empt the outcome of that work.
Hon ALISON XAMON: With respect, I do not think there was a deliberate decision to exclude the capacity to extend magistrates’ terms beyond 70 years of age; I think it was just one of those issues that had been overlooked. Of course, I have no evidence of that; that is just my very strong suspicion. I remind the chamber that when I first raised this amendment, the only rationale given at the time for not supporting it was that there had not been time to consult. Much time has now elapsed so that concern falls away. I again remind members that I was advised only yesterday, finally, that the government would not support this amendment. My office has been attempting to engage on this for quite some time, because one of the things we also wanted to know was whether there was any legitimate concern about what had been drafted and whether something needed to be taken into account. I did not find out that there were any concerns until I listened intently to the Leader of the House’s reply to the second reading debate. Despite this amendment having been on the notice paper since October, that is when I found out that there was a concern. As has been stipulated, that concern has now been rectified. I think this is an important provision to keep for the sake of consistency, but, importantly, it is going to mean that if it is desirable for a magistrate to stay on beyond 70 years of age for any reason, that could occur. I think it is a provision that sitting magistrates would like to know is there. As such, I urge members to consider supporting this amendment.
Hon SUE ELLERY: Not to respond to the issues raised, but something that could be fixed by way of a Clerk’s amendment—on supplementary notice paper 23, issue 3, proposed subclause (3A) is at the bottom of the page. It should be (3a).
Hon ALISON XAMON: I am, of course, prepared to accept that amendment and, if it is easier, I am happy to move it, but I do not mind if it is done by the Clerk.
Hon Sue Ellery: The Clerk can do it.
Hon MICHAEL MISCHIN: I want to explore a few things. Firstly, I do not think it should be proposed subclause (3a). It is not a subparagraph of a subclause; it is a subclause so I think, consistent with drafting practice, it would be (3A), as it would be with a proposed section, but no doubt parliamentary counsel or someone would be able to sort that out.
I have listened with interest to what has been said about this issue and I have a few questions of the minister if she is prepared to assist before I indicate a final view, but my inclination is that this amendment be supported. I will deal with a couple of the matters that were raised in the course of the discussion so far. I am disappointed that the minister seems to think that the amendment is motivated out of some kind of outrage and cannot understand Hon Alison Xamon’s problem with the manner in which she has been dealt.
Hon Sue Ellery: If we put the substance of the amendment to one side, I take no issue with Hon Alison Xamon moving it. She expressed a point of view of being unhappy about someone from the government apparently contacting other members. That is what I responded to. I do not have an issue with her moving the amendment that she seeks to move. We will not support it, but I take no issue with her moving it.
Hon MICHAEL MISCHIN: True. I understand and I understood the minister’s counter to that point. I have no doubt that Hon Alison Xamon will correct me if I am misinterpreting it, but one of her complaints about the way that the government treated her proposal was that, without approaching her directly to discuss whether the government would support or reject what she had proposed, approaches were made to other parties to encourage them to oppose the amendment. What Hon Alison Xamon had been hoping for, I think justly, was that in the nine months since she put forward this idea, there would have been some engagement with the government to say, “We accept what you want to do”, “We accept what you want to do, but with some modifications to deal with technical problems,” or “We reject what you want to do and these are the reasons we will not go along with it.”
Hon Alison Xamon: That is correct.
[Speeches and comments from various members]
Hon ALISON XAMON: I draw members’ attention to the fact that on 10 October last year I received an email from the ministerial liaison officer advising that at the time, the Acting Chief Magistrate was supportive in principle of the amendment that had been proposed. There was concern that the amendment would be put up without the Chief Magistrate having been spoken to, as we thought that the amendment would be put up pretty much straightaway. Even then, the Acting Chief Magistrate indicated that they were supportive in principle. I remind members that if the forthcoming Court Jurisdiction Legislation Amendment Bill passes, the number of cases in the Magistrates Court’s jurisdiction will increase because the bill will increase the dollar ceiling for cases that the court can hear. Should we follow through with the government’s proposed legislative agenda in this space, we will be looking at the very real possibility of needing more magistrates. This amendment would help to facilitate that proposed reform of the Magistrates Court.
[Speeches and comments from various members]
Hon NICK GOIRAN: Briefly, with respect to the amendment before the chamber, I wonder whether members, in particular Hon Alison Xamon, might have at their disposal schedule 1 of the Magistrates Court Act 2004. If they do—I indicate these remarks are intended to be of assistance to the amendment Hon Alison Xamon seeks to move—item 1 of the amendment on the supplementary notice paper seeks to insert into clause 9(2) of schedule 1 effectively two new paragraphs. If the member has schedule 1 at her disposal —
Hon Alison Xamon interjected.
Hon NICK GOIRAN: If the member has clause 9 of schedule 1 at her disposal, she will see that it already has a clause 9(2) and that clause 9(2) has paragraphs (a), (b) and (c). With the first limb of her amendment, Hon Alison Xamon is seeking to replace paragraphs (b) and (c) with new paragraphs (b) and (c). I agree with what she is trying to do. There is no issue there. The second limb of her amendment to schedule 1 seeks to delete certain words in clause 9(3). Again, I have no issue with that. My question to the honourable member is about (3A). I suspect that the member intends to insert new clause 9(3A) into schedule 1. If that is the case, this amendment needs some slight modification.
Hon ALISON XAMON: Thank you, honourable member, for seeking clarification of that. As I had indicated when I spoke to the revised amendment, due to the minister’s second reading reply, I became aware that there was concern about the way my amendment had initially been drafted. It did not include a similar provision to what exists within the District Court of Western Australia Act and the Supreme Court Act that enabled those 12-month appointments to potentially be ongoing or to occur on multiple occasions. As such, that wording has been taken from those acts and it replicates that provision to enable any extension beyond the age of 70 to occur in multiple terms if that is deemed to be appropriate.
[Speeches and comments from various members]
Hon SUE ELLERY: The government is still opposed to the amendment, but the technical point that Hon Nick Goiran raises about the need to insert, effectively—if I can describe it as such—an instruction, rather than the terms of the amendment, is correct.
Division
Amendment (deletion of words) put, and a division taken, the Deputy Chair (Hon Matthew Swinbourn) casting his vote with the noes, with the following result —
Ayes (17)
Noes (10)
Amendment (deletion of words) thus passed.
Hon ALISON XAMON: It appears that the amendment will proceed. We need to get the wording as precise as possible so that, hopefully, it will be complete. I am conscious that Hon Nick Goiran has raised a potential technical issue around the wording. It would be good to resolve that. I am aware that we have experts around the middle of the table at the moment who can provide advice on how the amendment can potentially be drafted. As such, I hope some improvements can be suggested.
Hon SUE ELLERY: The government has already agreed to the amendment. The way that Hon Nick Goiran has described what needed to be done is agreed. The clerks have advised the Chair that they can work with parliamentary counsel to fix it. We understand the way it has been described by Hon Nick Goiran. That is accepted by everybody. Rather than try to write something now, it is much better to accept the advice of the clerks and to construct it that way.
Hon ALISON XAMON: I am happy with that.
Further consideration of the clause postponed, on motion by Hon Sue Ellery (Leader of the House).
Progress reported and leave granted to sit again at a later stage of the sitting, on motion by Hon Sue Ellery (Leader of the House).