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Ailing justice system awaits its silver bullet

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The legal profession, and in a more discreet way, the judiciary in South Australia, have been complaining for some time about under-investment in our legal system.

At a ceremonial sitting of the Supreme Court of South Australia some years ago the Attorney-General John Rau, bewigged and carrying out his ceremonial duties at the bar table welcoming a newly commissioned judge to the court, took the opportunity to announce some $300,000 in funding to scope a new court complex. Quick off the mark and to the great amusement of the gathered members of the profession the then, and much admired, Chief Justice John Doyle AC QC, asked the Attorney for a laminated copy of his promise.

Many members of the profession were cynical but lo and behold thereafter began a planning process including detailed meetings conducted during my Presidency of the Law Society, sketching out the requirements for a new court building. It was to be constructed on land behind the ‘Old Supreme Court’ building. and on an adjacent block of land acquired for purpose from the Commonwealth some years ago. The concept was similar to a Public Private Partnership but, instead, a private consortium would build the court and lease it back to the state of South Australia on a long-term arrangement. Three consortia were eventually shortlisted.

What happened next is a lesson in the dangers in believing in the ‘silver bullet’. Every time a criticism was made of the funding to the Courts Administration Authority, the answer from government was that the solution was the new courts building. While the new South Australian Civil and Administrative Tribunal will have a new whizz bang ICT system, the courts will have to wait unless it can be paid for from its existing budget. All the while law firms must employ rounds clerks to walk to and from the courts to hand-file documents with the court registries because there is no IT system to enable them to receive electronically filed documents unlike the Commonwealth Courts (I insert a gentle reminder that we are in the second decade of the 21st century). If a litigant wishes to use IT equipment in the court you’d best bring your own. Judges are open to it but the court cannot provide it. Things are so bad that the court orderlies (on instruction) decline requests to photocopy documents because it costs too much! But wait, all will be solved with the new courts building won’t it?

The point is that if you substantially increase the workload of a court then it follows that its resources must be increased. That is unless you are this State Government.

At the same time there has been a continuous undercurrent of complaint about the number of judges. The problem with the legal profession, in part, is that many of its members don’t wish to complain too loudly for fear of losing favour with the Attorney-General and government who ultimately have the power to appoint lawyers to judicial and quasi-judicial positions. And thus there is a culture of licking our wounds in private.

Nevertheless, even from the conservative legal profession there have been outbursts of frustration about criminal trials that are not reached time after time and adjourned for up to a year from their first listing, and civil judgements that are outstanding for unacceptably lengthy periods of time. Little wonder the public has a crisis of confidence in our legal system.

I defend our judges who arguably have too few personnel and too many cases. I have previously examined why our judicial lists look like they do but, in short, our District Court in particular has been swamped with criminal matters. The removal of a statutory time limit for the prosecution of some sexual offences (correctly done) has opened a floodgate of what are known as historic sex cases. Some criminal barristers seemingly do little else.

Other ‘law and order’ decisions made during the Rann and Foley years have resulted in an influx of matters from the jurisdiction of the Magistrates Court to the District Court as parliament has sought to characterise criminal conduct as more serious today than it was yesterday. Whether you agree with these decisions or not is hardly the point. The point is that if you substantially increase the workload of a court then it follows that its resources must be increased. That is unless you are this State Government.

Recognising the train wreck in the District Court, the Attorney-General moved the jurisdictional goal posts so that many more matters would and could be concluded in the Magistrates Court, the court of inferior jurisdiction to the District Court. That was done, however, without the appointment of a single additional magistrate.

A general list in the Magistrates Court is a little like a entering the legal version of a revolving door. The magistrate has so many matters listed she or he must deal with each one in a very short period of time. I admire the magistracy. They do one of the hardest jobs in the law without loud complaint, but I am concerned about the fact that each decision made by a magistrate can have life-long consequences for an accused person. To record a conviction or not might be the difference in the future between a job or no job, for example. With the haste with which magistrates must churn through matters, I wonder how they can sensibly deal with each person’s matter fairly and accurately all of the time.

It would be irresponsible to enter into conjecture as to why there is such delay, but one is now left asking – are we going to get a new court building at all and if so when?

Returning to the District Court, His Honour Justice Lovell QC was recently appointed to the Supreme Court. The number of District Court judges who had retired or been promoted but not replaced had reached as high as five. A judge was appointed last week, bringing the tally back down to four. Not all of the remaining judges on the bench of the District Court are able to do a full case load. Thus we are significantly under-resourced in that Court. Although there have been appointments on the Supreme Court, it is still at least a judge ‘short’.

Perversely, if you discuss this dilemma with judges they usually tell you that more judges may not help because there are not enough court rooms! The dumbest business decision that can ever be made is to restrict growth because of bricks and mortar, yet here we are with an evident lack of physical court rooms impeding the business of the court.

But, I hear you say, the salve for all our problems, the ‘silver bullet’, is the new court building that will project our ailing legal system like a Phoenix from the ashes.

A decision about which consortium is to build the new court was to have been made by now. In fact the ground was supposed to have been broken. Construction was to have begun.

The timetable was clearly enunciated by our Attorney-General in March of last year. Cabinet was to choose the preferred consortium in August-September 2014, with construction starting from January this year. The project was to be completed and functioning by 2017. Yet insiders say that Cabinet is struggling to come to the first of its decisions. It would be irresponsible to enter into conjecture as to why there is such delay, but one is now left asking – are we going to get a new court building at all and if so when?

The problem for the government is that it over-egged the pudding. The new courts building was to be the answer to everything. Where are we to do without it?

In a recent conversation with a past Law Society president he told me that during his term well over a decade ago he too had attended detailed planning sessions for a new court building. He too has experienced the excited anticipation of a fabled new court building.

As one looks forlornly at the Old Supreme Court, it’s colonial splendour dulled by crumbling plaster, peeling paint, utterly outdated nineteenth century facilities and the spectre of its ghastly 1960s library building (that has caused me to cringe every time I have looked at it since my admission in 1987), one is mildly embarrassed to have ever been excited by the prospect of new legal edifice.

I must remind myself that SA Health, taking more than a third of the state budget at a cost of $5 billion, is far more important than our legal system (the annual budget of the Courts Administration Authority lies south of $100 million). Then again, I’m just another greedy lawyer unreasonably demanding a functioning twenty first century legal system – ignore me.

[FOOTNOTE: Just hours after this article was published, news broke that the Government had decided not to go ahead with the new court building it had been negotiating with a construction consortium.

Attorney-General John Rau released a statement saying: “”The process involved seeking a value for money, PPP solution to the undoubted need for investment in courts infrastructure, including IT.  The actual build proposed was fit for purpose, however it did not achieve the value for money proposition needed by Government for the project to go ahead. Further consideration of a courts precinct development and IT provision will now occur in the context of budget deliberations.”]

Morry Bailes is managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA.

The opinions expressed in this column are his own.

His column appears in InDaily on every second Thursday.

Disclosure: Morry Bailes is a member of the Liberal Party.

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