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A court between a rock and a hard place

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If members of the state’s judiciary were outraged at the absence of funding for long-overdue courts infrastructure in this month’s budget, there was one person in the Labor caucus with little sympathy for their plight.

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Former Attorney-General Michael Atkinson offered a new Supreme Court building to SA’s law officers in the early days of the Rann administration. It was to be built as a Public-Private Partnership on the former “tram barn” site in the south-eastern corner of Victoria Square that now houses SA Water – but it was rejected on grounds Atkinson deemed “whimsical”.

As he recalls it, a “historic and native-title-like affinity with the south-western corner of Victoria Square”, and the realisation “that from time to time judges would have to walk across the square from the new courts to the Sir Samuel Way Building”, scuttled the deal, which he describes as “looking a gift horse in the mouth”.

But his recollection has scratched the scab from the wound that has blighted the relationship between the judiciary and the Labor Government since it took office in 2002. A wound that, it appears, will not heal until the ribbon is cut on a long-mooted new courts precinct.

“Having retired four years ago, it’s disappointing that the Government still hasn’t faced this responsibility,” retired chief justice John Doyle told InDaily this week.

“I can’t help wondering if he [Atkinson] is supporting the courts or trying to make things difficult for the courts?”

Courts Judges 1

Former Chief Justice John Doyle leads his fellow judges at the 2006 opening of parliament.

It was 2003, and a relatively fresh-faced Rann ministry was looking for building projects.

“Pat Conlon and Kevin Foley wanted to get a PPP up and running,” Atkinson recalls.

“They just wanted to prove it could be done, because they thought if they could get one up and it was reasonably successful, they could use it elsewhere in Government.”

Chief among the reasons for pursuing the public-private model was the fact that, as the former Attorney puts it, “they could do the lot upfront and there’d be a long tail of repayments – but that was a matter for another Government, after they left politics”.

“I wasn’t really going to enter into that, because I wasn’t going to look a gift horse in the mouth.”

Conlon recalls that there was “a lot of under-utilised land that was really quite close to the existing Supreme Court building” and “one of the situations we thought might work was essentially giving people some commercial aspects to it as well”.

“We were keen to test it then, and we were also keen to test it later,” he reflects.

“I was always keen to try any bloody idea if it would have worked to build something – that was the nature of my role.

“I wanted to do things, you know!”

Armed with the endorsement of cabinet for a new Supreme Court hub, Atkinson relayed the offer to Doyle in his Gouger Street chambers, in one of their fortnightly meetings that the now-Speaker insists were “uniformly civil”.

“The Chief Justice seemed pretty happy when I told him [but] when I came back a fortnight later he said he regretted to inform me that his brother judges had discussed the matter and decided to decline my offer on the grounds that they had an affinity with the south-western corner of the square,” Atkinson says now.

“It had also been pointed out that from time to time judges would have to walk over Victoria Square, from the eastern side to the western side, to hear a case in the Samuel Way Building, and that raised security concerns.”

Doyle doesn’t dispute Atkinson’s recollections, saying: “In general terms, he’s right.”

But, he argues, there was a fundamental flaw with the proposal.

“The problem was this was a proposal under which there would only be civil courts there – no criminal courts at all,” he says.

“And the pressing problem was the lack of criminal courts.”

While the new building would address a shortfall in space for civil proceedings, “it didn’t grapple with what was the major underlying problem”.

“We just haven’t got enough criminal courts, [so] it addressed one aspect of the problem but not the major problem.”

And given that intractable problem would still need addressing, the plan would ultimately mean that the Supreme, District and new Criminal Courts – should they ever get built – would all be in separate digs.

“Far from consolidating, as you should, it was creating a situation in which the courts were spread over three sites, so it didn’t seem to make sense,” Doyle argues.

Addressing Atkinson’s other points, he disputes the implication that judges were simply averse to walking across the square “as if we think we’re so important we shouldn’t have to cross roads like ordinary citizens”.

“But the regular movement of court files is a security risk, and probably in terms of risk of accidents happening you’re increasing that aspect of the matter,” he says.

“It may seem trifling, but bearing in mind events of the last five or six years in terms of terrorism, the situation wherein you increase the instance of staff, judges and important papers being carried across Angus, King William and Gouger streets is not a good thing.

“No-one suggests that was decisive, but that was a factor.”

As, too, he concedes, was the notion of an “attachment to the existing site”.

“But the proposal had a lot of problems in any event, and didn’t address the major problem,” he insists.

“How would they react,” he ponders, “if I said ‘let’s move Parliament House from that old gracious building to a more modern office’,” moreover keeping aspects of the existing administration mired on North Terrace.

“I don’t think parliamentarians would consider that very satisfactory either,” he muses.

“I don’t think there was anything at all unreasonable in our final decision.”

Supreme Court

The judiciary say the Supreme Court facilities need replacing.

Atkinson says the refusal “didn’t stop me building courts – I just went and built a series of courts in the country before [we addressed] the court that handles a great majority of business”.

He says he spent infrastructure funds instead in Ports Lincoln, Pirie and Augusta, as well as Victor Harbor and the Riverland.

“So when they complain about a Government that doesn’t make courts its priority, well now – we did spend a lot of money on courts… but after that refusal we spent money in the country [instead].”

But Doyle says there are no regrets about the rebuff, even with no additional money spent almost 14 years on.

“No, it’s not a regret even in hindsight,” he insists.

“I’ve got no regrets at all about the decision; indeed, I think had we done what was suggested, the Government would be saying ‘we’ve moved you to a new building, now you want another new building for criminal courts?’

“So the fact we’re still there makes it simpler to consolidate on one site, and I think everyone agrees that’s the logical solution to the whole problem. If we’d moved to the new building it would be all the more difficult to do what everyone agrees is logical.”

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Current Attorney-General John Rau says there is no disputing the need for a new court precinct. Photo: Not Rogers, InDaily.

If there is one thing all parties agree on, it is that the new precinct is desperately needed.

It came tantalisingly close in 2014, but a proposed PPP fell over when the Government realised the costs didn’t stack up.

As current A-G John Rau puts it, “the reason why the thing came into very choppy water was that it wound up being a very expensive exercise”.

“The issue is for us to find an appropriate way of accommodating the courts at an affordable cost,” he says.

“I’ve been pushing this thing the whole time I’ve been Attorney-General… I thought I’d got there a couple of years ago, but ultimately it just wasn’t a value-for-money proposition; it just didn’t work.”

But he acknowledges one thing.

“The need for it is irrefutable,” he agrees.

“The need to do something about those physical facilities is beyond contest… it’s not a question of if we fix them, it’s a question of when we fix them.”

But it is the ‘when’ that continues to rankle, amid complaints about OHS hazards in the existing facilities.

This month’s budget contained – rather than the millions the judiciary had rather optimistically demanded for new infrastructure – a mere $1 million “to develop a strategic approach to future accommodation needs of court facilities in the CBD”.

That prompted a stinging response from the Law Society, whose president David Caruso lamented that “the budget had little in it to address the delays and building rot affecting our court system”.

“There’s no funding for courts,” he said. “It’s that simple.”

Doyle says he’s “disappointed”, but not surprised.

He does, however, “find it hard to believe after all this time, still the Government is saying it isn’t our turn yet – bearing in mind this was an issue which occupied a good deal of my 17 years as Chief Justice”.

His successor, Chris Kourakis, says the proposals mooted in 2003 – before his time on the bench – have “long been overtaken”.

“I would be surprised if responses, of long ago, to a now-irrelevant proposal were used to undermine sound contemporary government policy formulation on this important issue,” he told InDaily of Atkinson’s recollections.

He did, however, point out that the Courts Administration Authority – at the invitation of Government – expended “much time and resources” developing the now-shelved proposal for the new courts complex – a complex he says “is urgently needed to address problems caused by the dilapidated states of the Sir Samuel Way and Supreme Court buildings and the medium-term shortage of criminal courtrooms”.

“It should be located where it is accessible to litigants, witnesses, lawyers and the public, and in a place which is appropriate for an arm of government,” he says.

“It must therefore be centrally located but the particular position is not critical. The advantage of the south-western corner is that it is currently vacant and already in government ownership.

“For reasons of efficiency it is important that the complex accommodate both the civil and criminal courtrooms and the chambers of the judges.

“The criterion against which the Courts Administration Authority and the judges of the state will evaluate all proposals is the accessible and efficient operation of the courts.”

Rau, though, insists the million dollars earmarked for “master-planning” is important, “to ascertain exactly what their needs are and how we can best accommodate them”.

“By far the most complex issue about that is the criminal courts,” he explains.

“They are necessarily a purpose-built facility: you need holding cells, sally-ports, security measures, jury facilities, separate sets of lifts… the actual security and physical requirement of criminal courts are significantly different to any other sort of building.”

A decision will need to be made, with the current lease on the Samuel Way Building due to expire in around five years.

“We have to provide notice to the owners as to whether we intend to exercise our right to buy the building, quit it or stay there [so] we have to make choices in the next little while about what we’re going to do,” says Rau.

“The question is how do we plan to transform that into a modern contemporary facility in the most effective way – and deliver the best value for public dollars?”

And, despite everything, that’s a necessity Rau’s predecessor acknowledges.

“I accept that it would be desirable from the point of view of the people who work there,” Atkinson says of the proposed new precinct.

“There are reasons that make the place an unpleasant place to work [and] it would be a good thing if we had a new supreme court.

“But it could have been in place for the last 10 years, but for a decision of the Supreme Court Judges, for a reason I thought was whimsical.”

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