Second Reading

Resumed from 6 September 2017.

[Speeches and comments from various members]

HON ALISON XAMON (North Metropolitan) [6.14 pm]: I rise as the lead speaker on behalf of the Greens. I indicate from the outset that we will be supporting the Courts Legislation Amendment Bill 2017, although, as was just alluded to, I have an amendment on the notice paper that I will speak to in a moment.

The bill seeks to do three things. It will make two technical amendments, and the most substantive part is that it will increase the mandatory retirement age of magistrates from 65 to 70 years. The technical amendments appear to be relatively straightforward. The bill will address an anomaly identified in the Civil Judgments Enforcement Act 2004. Part 2 of the bill will correct the current anomaly, whereby the Civil Judgments Enforcement Act 2004 does not specifically authorise the imposition of a fee for registering a judgement in a court under section 105(1) of the Service and Execution of Process Act 1992. My amendment explicitly states that the power under the act to make regulations includes the power to prescribe fees in respect of the registration of judgements under the Service and Execution of Process Act 1992. Importantly, the amendments also provide for the retrospective validation of those fees.

The other technical amendment will amend the Supreme Court Act 1935 to remove an outdated and unnecessary provision. Currently, sections 31 and 32 of the Supreme Court Act 1935 provide for the payment of interest. Section 31 provides for the recovery of interest for the loan of money or other contracts. It stipulates that when the rate of interest has not been previously agreed, the rate of interest recovered must be less than six per cent per annum. Section 32 provides that the court must order interest to be paid in any proceedings for the recovery of money, with the court appropriately given discretion to determine the rate of interest. As there is no longer a need for a specific distinction between the interest for the loan of money or other contracts and interest in other proceedings for debts and damages, this bill will delete section 31. It is appropriate that the court determines the amount of interest, taking into account the circumstances of individual cases and having reference to interest rates set by the Reserve Bank of Australia. I again remind members that the Greens like judicial discretion, so it is pleasing that that principle has been incorporated in this bill.

The third and the most significant amendment will amend the Civil Judgments Enforcement Act 2004, the Magistrates Court Act 2004 and the Supreme Court Act 1935. It will increase the mandatory retirement age for magistrates from 65 to 70 years. The retirement age across jurisdictions other than South Australia is 70 or 72 years. The mandatory retirement age of 70 years for federal judges was introduced by referendum in Australia in 1977, and under section 72 of the Australian Constitution the maximum age for justices of the High Court and any court created by Parliament is 70 years. In 1977, 70 years old probably sounded like a pretty reasonable age, but it could be seen as somewhat arbitrary today. Remember, members, that 40 years ago the average life expectancy for men was less than 70 years. According to the Australian Bureau of Statistics, babies born today have the highest estimated life expectancy ever recorded. In 2015, male life expectancy at birth was just over 80 years, and female life expectancy was 84.5 years. Compulsory retirement ages for judges, although not uncommon, are not controversial. On the one hand, the judiciary as a profession benefits from longevity and wisdom, while on the other hand there is benefit in refreshing and renewing the judiciary. I note that the Organisation for Economic Cooperation and Development encourages the abolition of compulsory retirement ages across all professions. In 2013, the AustralianLaw Reform Commission noted the symbolic implications of compulsory retirement ages and recommended that the Australian government initiate an independent inquiry into both judicial and quasi-judicial appointments. I recognise the importance and gravity of judicial decision-making and the significant potential repercussions of having people on the bench with a concern that their mental faculties might be deteriorating. We know that rates of deterioration increase significantly with age, but I also point out that the jury disqualification age was recently raised to 75 years in this state, so this inconsistency seems quite illogical.

Debate adjourned, pursuant to standing orders.


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