I. THE SCOPE OF THE APPENDIX
A.1 This appendix is in three parts. In the first part we outline the systems for appointment and discipline of magistrates in Australia, outside New South Wales. In the second part we describe briefly three recent instances in Australia when the status of the magistracy was altered significantly by legislation. In the final part we refer briefly to certain aspects of the system for appointment and discipline of magistrates (or broadly equivalent office-holders) in several other countries.
II. MAGISTRATES IN OTHER PARTS OF AUSTRALIA
Introduction
A.2 In descriptions of the Australian magistracy a distinction is often drawn between magistrates who are subject to a Public Service Act and those who are not In Queensland, South Australia and Victoria, magistrates are subject to such an Act.1 In South Australia, however, we understand that the Government is giving active consideration to removing the magistracy from the Public Service Act Magistrates are not subject to a Public Service Act or Ordinance in Tasmania (since 1969), the Australian Capital Territory (since 1977), and Western Australia (since 1979).2
A.3 It is important to note, however, that the fact that magistrates in a particular jurisdiction are subject to a Public Service Act does not necessarily mean that most or all of them were public servants prior to appointment. In Queensland and Victoria, all current magistrates were public servants prior to appointment and had worked in the magistrates courts or, in a few instances in Victoria, in some other capacity in the Law Department But in South Australia, most current magistrates were private legal practitioners prior to appointment, and none had worked as magistrates courts officers.
A.4 Conversely, the fact that magistrates are not subject to a Public Service Act does not necessarily mean that they were practising lawyers rather than court officers, prior to appointment In the Australian Capital Territory and Tasmania, all current magistrates were previously private legal practitioners or government lawyers, rather than magistrates courts officers. But in Western Australia some magistrates were practising lawyers prior to appointment and others were previously court officers. This mixture in Western Australia applies both to appointments made before 1979 (when the magistracy was removed from the Act) and subsequently.
A.5 The approximate number of full-time magistrates in the various jurisdictions is as follows:
| Australian Capital Territory | 5 |
| Queensland | 66 |
| South Australia | 32 |
| Tasmania | 13 |
| Victoria | 73 |
| Western Australia | 30 |
In the Australian Capital Territory there are 5 part-time magistrates, and in all other jurisdictions some justices of the peace perform minor judicial functions, on a part-time basis, in courts of summary jurisdiction.
A.6 In those Jurisdictions where magistrates are not subject to a Public Service Act, there is nonetheless a government department which has administrative responsibilities in relation to them (for example, concerning provision of premises, payment of salaries etc.). In each of these jurisdictions, the Attorney General is the ministerial head of the department in question In those jurisdictions where magistrates are public servants, the Attorney General is the ministerial head of the department to which they belong, although in South Australia the department is the Courts Department, which is responsible only for courts administration, and the other aspects of the Attorney General’s portfolio are the responsibility of a separate department with a different permanent head.
A.7 We turn now to a general outline of the position in the principal Australian jurisdictions outside New South Wales. Our purpose is to give an overview rather than exhaustive detail. We refer mainly to statutory provisions, but we also mention certain practices which our inquiries indicate have become established in particular jurisdictions.
B. Qualifications for Appointment
A.8 In three jurisdictions there is only one avenue for appointment as a magistrate. In the Australian Capital Territory and Tasmania it is necessary to have been admitted as a legal practitioner for at least five years prior to appointment.3 In Queensland, it is necessary to have become eligible for admission as a legal practitioner and to have worked for at least five years as an officer in the Magistrates’ Courts or certain other branches of the justice Department.4
A.9 In South Australia there are no qualifications prescribed by statute, 5 although, in practice, admission as a legal practitioner for at least five years is regarded as a pre-requisite.
A.10 In the other two jurisdictions there are alternative avenues. In Victoria, a candidate for appointment must be at least 35 years old and must either:
- have practised as a legal practitioner for at least five years (mere admission, without practising, for such a period is insufficient), or
- have passed a prescribed course of examinations (which, in practice, is a law degree) and have worked as a magistrates courts clerk for at least 10 years.6
In Western Australia, it is necessary either to be admitted as a legal practitioner or to complete a comprehensive course of legal examinations supervised by a special board.7
C. Appointment Procedure
A.11 Magistrates are appointed by the Governor,8 who in accordance with constitutional convention acts upon the advice of the Cabinet conveyed to him in the Executive Council. Cabinet usually relies on the Attorney General to recommend suitable candidates to it. The only exception to this system is in South Australia, to which we refer in paragraph A.13.
A.12 The Government is not required by statute to consult anyone before advising the Governor. Usually, however, the positions are advertised, and the Attorney General and his or her officers carry out informal consultations. Candidates may or may not be interviewed. In Victoria, the chief magistrate’s recommendations almost invariably have been sought and adopted; elsewhere there is no firmly established practice but the Chief Justice, the chief magistrate, the Solicitor General and the Presidents of the Law Society and the Bar Association are among those whose views may be sought. The principal exception from this pattern is Queensland, where a selection committee is invariably constituted, though not required by statute. This committee usually consists of the chief magistrate and the heads of the justice Department and the Public Service Board. It interviews only those candidates unknown to the members and makes a recommendation to the Public Service Board. The Board’s recommendations are invariably adopted.
A.13 In South Australia, the statutory procedure is that appointments are made by the Governor on the recommendation of the Public Service Board, provided that the Chief justice endorses the recommendation.9 In practice, vacancies are advertised and candidates are considered by a selection committee comprising the two senior magistrates and the head of the Courts Department (see paragraph A.6). The committee’s recommendation is formaly adopted by the Public Service Board but may be vetoed by the Attorney General the Chief Justice, or Cabinet.
D. Duration of Appointment
A.14 Magistrates are appointed until the age of 65,10 subject to the disciplinary and disability provisions described in paras. A.20-A.29. In Queensland, there is optional retirement at the age of 60,11 and in Western Australia the Governor has discretion to continue a magistrate’s term until the age of 70 “if the occasion requires it”. 12
A.15 In Western Australia there is provision for magistrates to be appointed for a fixed term of years, 13 and some such appointments have been made in recent years. As was intended, the provision has attracted some established legal practitioners to accept appointment to the magistracy. In Tasmania, magistrates can also be appointed on a “temporary” basis. 14
A.16 It is convenient to refer here to the appointment of part-time magistrates. There is specific provision for such appointment in the Australian Capital Territory 15 and Western Australia. 16 As mentioned earlier, there are currently five part-time magistrates in the Australian Capital Territory. They are academic or retired lawyers. Their working hours fluctuate but for those who sit regularly, they average about half those of a full-time magistrate.
E. Promotions
A.17 Most jurisdictions have two or more grades of magistrate (in addition to those of chief magistrate and deputy chief magistrate or equivalent). The grade affects salary, and may determine where a magistrate sits 17 and whether he or she has administrative authority over other magistrates. 18 There are no such grades in the Australian Capital Territory 19 and Western Australia. In Queensland, promotion between grades is made by the same procedure as initial appointment, and is based on efficiency (or, in the event of equal efficiency, on seniority). 20 In South Australia, promotion is determined by the Attorney General but there are no statutory criteria or procedures, save that promotion from the initial grade is restricted to magistrates of at least five years standing. 21 In Tasmania, promotion is based entirely on seniority. 22 In Victoria, promotion is dependent on the recommendation of the Chief Stipendiary Magistrate. 23 There are no statutory criteria or procedures, save that promotion from the lower grade is restricted to magistrates of at least five years standing. We understand that, on occasion, promotion in Victoria has been withheld or delayed for disciplinary reasons.
A.18 In every jurisdiction except the Australian Capital Territory, the chief magistrate and any deputy chief magistrate must be drawn from the ranks of the magistracy. 24 There is no other statutory criterion for appointment, save that in South Australia the chief magistrate. 25 Appointment is made by the must have at least five years experience as a magistrate. Appointment is made by the Governor, acting on the recommendation of Cabinet (or, in South Australia, the Attorney-General 26) There are no statutory requirements for further consultation.
A.19 There is no express provision in relation to promotion of magistrates to higher courts. We are not aware of any formally established practices to the effect that promotions will not occur, or that specified criteria will be applied when considering promotion in Tasmania in 1973, a magistrate was promoted to Chief justice of the Supreme Court. In Western Australia two lawyers who had been magistrates earlier in their careers were appointed in recent years as, respectively, a Supreme Court judge and President of the Industrial Commission. However, they were not promoted directly from the magistracy.
F. Grounds for Discipline
1. Removal from Office
A.20 In the Australian Capital Territory, magistrates can only be removed from office for “proved misbehaviour or incapacity,” 27 while in Tasmania and Western Australia they hold office “during good behaviour”. 28 In the other jurisdictions, magistrates are subject to the Public Service Act, including its provisions relating to discipline. Thus, in Queensland a magistrate can be dismissed from the Public Service for being “inefficient or incompetent” or absent without leave for 14 consecutive days, 29 and can be reduced in classification (which could involve removal from office as a magistrate) for any of a number of offences, unless in the particular circumstances the conduct is considered to be only a minor offence. The offences 30 include breaching the Public Service Act, being “negligent, careless or indolent in the discharge of [their] duties, being “inefficient or incompetent in the discharge of [their] duties” for reasons within their control failing to pay judgment debts within three months, “intoxicating beverages or drugs to excess”, and “disgraceful or improper conduct”. Magistrates who become bankrupt may be dismissed or demoted, unless they show that they were not guilty of “fraud, dishonourable conduct or extravagance.” 31 Magistrates charged with indictable offences maybe suspended and, if convicted, maybe dismissed or demoted. 32 The relevant provisions of the Public Service Acts in South Australia and Victoria are broadly similar to those in Queensland. 33
2. Suspension and other Lesser Sanctions
A.21 A magistrate may be suspended from office for “misbehaviour or incapacity” in the Australian Capital Territory, 34 “on any allegation of misbehaviour made by the Attorney General” in Western Australia 35, and for failure to maintain “good behaviour” in Tasmania. 36 There is no provision in any of these three jurisdictions for sanctions other than removal or suspension. In Queensland, where magistrates are subject to the Public Service Act, the grounds mentioned in para. A.20 in relation to removal or demotion below the rank of magistrate apply also to suspension from office and demotion within the ranks of the magistracy. 37 Where the offence is of a minor nature, the available sanctions are deduction from salary, reprimand and caution 38 The relevant provisions in South Australia and Victoria are broadly similar to those in Queensland. 39
G. Disciplinary Authorities and Procedures
1. Magistrates not under the Public Service Act
A.22 In the Australian Capital Territory, Tasmania and Western Australia magistrates may be removed from office only by the Governor on the address of both Houses of Parliament. 40 There are no statutory provisions about the procedure to be adopted in bringing such a matter to the attention of Parliament, nor about the way in which it is to be investigated and considered by Parliament.
A.23 The only other sanction provided for in these jurisdictions is suspension . In Tasmania, this power lies in the Governor on the address of both Houses. 41 In the Australian Capital Territory, it lies in the Governor General but the Attorney General must report the suspension to Parliament within a specified period and the suspension is cancelled unless within 15 sitting days of receiving the report each House resolves that the magistrate should be removed from office. 42 In Western Australia, the Governor may suspend on the recommendation of the Attorney General but the Chief justice (or a judge nominated thereby) must then inquire into the truth of the allegation. 43 The Governor may confirm the suspension if the inquiry so recommends, and continue it “pending consideration of the removal of the magistrate from office. 44 Thus, both in the Australian Capital Territory and Western Australia, suspension is, in effect, available only as a prelude to consideration of removal. We know of no instance, at least in recent years, of a removal or suspension occurring in any of these three jurisdictions.
A.24 Neither the Attorney General nor the chief magistrate has any statutory power to investigate the conduct of magistrates, or to impose minor disciplinary sanctions such as a demotion or a reprimand. It is likely, however, that if action were taken to suspend or remove a magistrate the Attorney General acting perhaps at the suggestion of the chief magistrate, would be principally responsible for investigating the matter and placing it before Parliament or the Governor as appropriate.
2. Magistrates under the Public Service Act
A.25 In Queensland, South Australia and Victoria, magistrates are subject to the general disciplinary provisions of the Public Service Acts, which as mentioned in paras. A-20 and A.21, provide for sanctions such as removal suspension salary reduction and reprimand. The only special provision in relation to magistrates is that in South Australia they may not be “dismissed or reduced in status” except on the recommendation of the Chief Justice. 45 There are no provisions governing the procedure to be adopted by the Chief justice before deciding upon such a recommendation.
A.26 The disciplinary authorities and procedures under the various Public Service Acts are too complex to describe here in full. The position in Queensland, summarised below, is broadly similar to that in the other two States. In Queensland, 46 permanent heads may impose minor sanctions, such as reprimands, without following any formal procedures. A final appeal lies to the Public Service Board. Where the offence is considered worthy of a heavier sanction the permanent head must formulate a written charge and give the officer an opportunity to give a written explanation in reply. The charge, the explanation and any reports obtained by the permanent head are then considered by the Public Service Board which if it wishes, can appoint one or more persons to “make a full and complete inquiry” 47 into the matter, with power to subpoena and to take evidence on oath and report to the Board. An appeal lies to an Appeal Tribunal comprising either a Supreme Court or District Court judge sitting alone, or, more usually, a magistrate appointed by the Governor as Chairman a person appointed by the Board, and a person appointed by the officer s union. The parties are entitled to be represented and to examine witnesses. The proceedings are private unless the officer wishes them to be public. The Tribunal has all the powers and privileges of a Commission of Inquiry but is to” inquire... without regard to legal forms and solemnities, and shall direct themselves by the best evidence they can procure, or that is laid before them, whether the same is such evidence as the law would require or admit in other cases or not”. 48 The Tribunal’s decision is adopted by the Public Service Board and a recommendation is made to the Governor. The final decision rests with the Governor, from whom there is no appeal.
A.27 In each jurisdiction the principal responsibility and power to initiate disciplinary action against a magistrate lies with the permanent head of the department to which magistrates belong, rather than with the chief magistrate. So far as we can ascertain disciplinary powers have rarely been exercised against magistrates. Some years ago a Queensland magistrate allegedly over-imbibed and fell asleep on the Bench. Charges were made under the Public Service Act and the magistrate was demoted to clerk of the Magistrates Court. We have been unable to ascertain the incidence of other sanctions such as reprimands or cautions, but we understand that they are extremely rare.
H. Disability Provisions
A.28 In this section we consider provisions relating to magistrates suffering from a mental or physical disability. In the Australian Capital Territory, such disability may be so severe as to constitute “incapacity”, in which case the procedures for removal and suspension referred to in paras. A.22 and A.23 apply. In Tasmania, magistrates hold office “during good behaviour”, and the disability may lead to conduct which justifies removal or suspension for breach of this requirement. The procedure for such action has been described in paras. A.22 and A.23. In neither of these Jurisdictions are there any further, or more specific, provisions in relation to disability. In Western Australia, however, the Attorney General is given explicit power to relieve a magistrate of duties if the magistrate is “physically or mentally unfit to discharge efficiently the duties of his office. 49 The Attorney General may then appoint a board of three medical practitioners to report on the magistrate’s fitness and recommend either “reinstatement” or “retirement”. 50 If the board recommends retirement, the Attorney General may advise the Governor to remove the magistrate from office.
A.29 In the jurisdictions where magistrates are subject to the Public Service Act the general provisions of that Act in relation to disability apply also to magistrates. As mentioned before, however, in South Australia a magistrate cannot be removed or demoted otherwise than on the recommendation of the Chief justice. The relevant provisions in the Queensland Public Service Act 51 are broadly similar to those in the other two jurisdictions,52 and we summarise them here. In Queensland, the Governor can dismiss a magistrate, on the recommendation of the Public Service Board, if the magistrate, “by reason of any mental or bodily infirmity, is unfit to discharge or incapable of discharging the duties of his office efficiently.” 53 If the Board considers it “necessary” to do so, it can appoint one or more medical practitioners to examine and report upon the magistrate before the Board decides whether to recommend dismissal In additiom some of the disciplinary provisions referred to in para A.20, relating, for example, to excessive use of intoxicating beverages or drugs, may also be relevant in the context of disability.
III. REMOVAL OF MAGISTRATES FROM THE PUBLIC SERVICE ACT
A.30 In this section we summarise certain aspects of the removal of magistrates from the Public Service Act which occurred in three Australian jurisdictions (the Australian Capital Territory, Tasmania, and Western Australia) in recent years. We begin with a background to the reasons for these removals.
A.31 It seems clear that at least in the Australian Capital Territory and Western Australia a major factor leading to the removals was the view held by some magistrates that, strictly speaking, they should disqualify themselves from hearing charges brought by a prosecutor who is a fellow public servant, especially if the prosecutor is employed in the same government department as the magistrate. In 1976 a South Australian magistrate disqualified himself on this ground and was upheld by the Supreme Court.54 The Government responded by transferring magistrates from the Attorney General’s Department to the Premier’s Department and then to the Courts Department (see para. A.6), and is now considering removing them from the Act. In 1977 a Western Australian magistrate disqualified himself in a case where the prosecutor was from a different government department. The Supreme Court held that the magistrate was wrong to disqualify himself, because he was not in the same department as the prosecutor nor subject to the same Minister.55 The Court also doubted whether magistrates in Western Australia could be regarded as subject to the Public Service Act; their appointment, salaries and dismissal were not subject to that Act, the disciplinary provisions of the Act arguably did not apply to them, and the Stipendiary Magistrates Act used the words “as if they were officers of the Public Service”.56
A.32 Other arguments which some magistrates have advanced for removal from the Public Service Act include a perceived lack of judicial independence and status arising from the provisions of the Act relating to matters such as discipline, and salary determination.
A.33 In none of the three jurisdictions was the removal from the Public Service Act occasioned by a major increase in the magistrates jurisdictions or powers.57 We turn now to the effect of the removal in each jurisdiction on appointment discipline and certain other matters relating to the magistracy.
A. Australian Capital Territory
A.34 Magistrates were removed from the Public Service Act in 1977.58 The Government described the purpose of this change as being to remedy the “undesirable situation” that “the arrangements in relation to appointment, conditions of service and discipline”, were such that magistrates “do not have the appearance of independence from the Executive Government”.59 It said that “added point has been given to the need for change “ by the South Australian case referred to in paragraph A-31.60
A.35 The amending ordinance did not re-appoint all existing magistrates but the Government made it clear that all would be re-appointed and they were. The power of appointment continued to be vested in the Governor General (but the Public Service Board ceased to be involved in the selection process) and the criteria and the duration of appointment remained unchanged. The determination of salaries, however, was transferred from the Public Service system to an independent tribunal. There was a substantial change in the disciplinary provisions. Magistrates ceased to be subject to the provisions of the Public Service Act, which enabled a wide range of sanctions to be imposed by the permanent head or Public Service Board. Instead, a judicial-type system was established with the only formal sanctions being removal by the Governor General on an address of both Houses of Parliament on the ground of “proved misbehaviour or incapacity’, and suspension by the Governor General pending consideration by Parliament whether the magistrate should be removed. The chief magistrate retained the substantial administrative control over other magistrates which had been vested in him several years earlier.
B. Tasmania
A.36 Magistrates were removed from the Public Service Act in 1969.61 The principal reason appears to have been that the Attorney General who had recently been a magistrate himself, considered that they should have Judicial independence.
A.37 The amending legislation re-appointed all existing magistrates. The power of appointment had been vested previously in the Governor on the recommendation of the Public Service Commissioner, but the new Act deleted reference to any such recommendation so that the Governor now acts on the advice of his Ministers. The criteria for appointment and the duration of appointment remained basically unchanged, but the power to determine salaries was transferred from the Public Service authorities to the Governor. Magistrates ceased to be subject to the disciplinary provisions of the Public Service Act, which covered a wide range of offences and, in relation to senior officers such as magistrates, empowered the Minister to suspend and the Governor, on the recommendation of a special tribunal appointed by him, to dismiss, demote, fine or impose lesser sanctions. Under the new system, magistrates were given judicial-type tenure “during good behaviour”, with the only formal sanctions being removal or suspension by the Governor on the address of both Houses of Parliament. There is no chief magistrate, but the senior magistrate in each district has administrative control over other magistrates in the district.
C. Western Australia
A.38 Magistrates were removed from the Public Service Act in 1979. 62 The reasons given by the Government when introducing the relevant legislation were to remove “any inference or connotation that magistrates are public servants” and to achieve “an up-to-date statute dealing with all major aspects of the magistracy”. 63 In fact, few changes were made in relation to matters such as appointment, salaries and discipline. As mentioned earlier, 64 Western Australian magistrates had not been subject to the Public Service Act in relation to these matters prior to 1979.
A.39 All existing magistrates were re-appointed by the legislation and the power of appointment continued to lie in the Governor. Provision was made for the appointment of temporary or part-time magistrates, and the Governor was empowered to allow particular magistrates to continue beyond the specified retirement age. Salaries continued to be determined by an independent tribunal rather than through Public Service procedures. There was little change in the disciplinary provisions; magistrates continued to hold office “during good behaviour”, to be removable only by the Governor on the address of both Houses and to be suspendable only by the Attorney General pending an inquiry by the Chief justice and subsequent consideration of removal. The chief magistrate retained the substantial administrative control over magistrates which had been vested in him some years earlier.
IV. COMPARABLE OFFICE HOLDERS IN OTHER COUNTRIES
A.40 In this section we outline the systems for appointment and discipline of magistrates, or equivalent office-holders, in certain other countries. We begin by looking at two Canadian provinces in which there has been considerable discussion and innovation in this area. We then look briefly at New Zealand and the United Kingdom.
A. Canada
1. British Columbia
A.41 The lowest level of court in British Columbia is the Provincial Court. Judges of that court are appointed by the Lieutenant Governor on the recommendation of the judicial Council. 65 The judicial Council was established in 1969 and comprises the Chief judge and Deputy Chief Judge of the Court, the presidents of the two principal societies of lawyers in the province (or their respective nominees), and up to five other persons (of whom one must be a judge of the court) appointed by the Lieutenant Governor. Appointees to the Court must have been admitted as legal practitioners for at least five years or have “other legal or judicial experience satisfactory to the [judicial] Council.” 66
A.42 Provincial Court Judges hold office “during good behaviour” 67 and may be removed only by the Judicial Council or a Supreme Court Judge, after holding an inquiry in accordance with the procedure described below. The only other formal sanction is suspension which can be imposed by the authorities after pursuing a similar inquiry procedure. The inquiry can consider” all matters ... relevant to the fitness of the judge ... to perform his duties including
(a) mental or physical disability,
(b) misconduct,
(c) failure in the execution of his office, or
(d) conduct incompatible with the due execution of his office.” 68
In addition the Chief Judge has “the power and the duty to supervise the judges”, including the power to assign them to “the duties the Chief judge considers advisable”. 69
A.43 All complaints about judges, other than the Chief Judge, who, “having examined the complaint”, 70 must report in writing to the complainant and the judge. The Chief Judge can then conduct an investigation into the fitness of the Judge to perform his or her duties, and must do so if directed by the Attorney General. Upon completion of the investigation the Chief Judge may take “corrective action”, 71 (but is given no power to impose formal sanctions) or order an inquiry, and must report to the Attorney General “the nature of the investigation relevant facts, his findings and any corrective action taken”. 72 The Attorney General also has power to order an inquiry.73
A.44 The inquiry is to be undertaken by the Judicial Council or, if the judge in question so elects, by a Supreme Court judge chosen by the Chief Justice.74 The tribunal of inquiry has power to subpoena and to hear evidence on oath and is to proceed in public unless it considers that the public interest requires otherwise. The tribunal must give the judge “particulars of the matter being inquired into” and “the opportunity, by himself or his counsel to be heard to cross-examine witnesses and to adduce evidence."75 The tribunal can retain legal counsel for the purposes of the inquiry. At the completion of the inquiry it can order reinstatement suspension for up to six months, or removal It must give reasons, and an appeal lies to the Court of Appeal.
A.45 A complaint about the Chief Judge must be directed to the Attorney General, who can order an inquiry, of the type described above, by a Supreme Court Judge chosen by, the Chief Justice. 76
A.46 The Judicial Council is not confined to the areas of appointment and discipline. Its other statutory functions include continuing education for Judges, consideration of proposals for improving the judicial services of the court, and development of a code of Judicial ethics.77
2. Ontario
A.47 The Provincial Court is the lowest level of court in Ontario. judges of the Court are appointed by the Lieutenant Governor on there commendation of the Attorney General. 78 The Attorney General is not required to consult his or her fellow Ministers, but may do so. He or she is empowered, but not required, to consult the judicial Council for Provincial judges about proposed appointments. 79 We understand that the invariable practice is for the Council to be invited to comment on names under consideration by the Attorney General. The judicial Council was established in 1968 and comprises the two most senior judicial office-holders in Ontario. The Chief Judges of the Provincial Courts two divisions, the president of the Law Society and no more than two other persons appointed by the Lieutenant Governor. 80 Most but not all appointees to the Court are qualified lawyers.
A.48 Provincial Court Judges can be removed by the Lieutenant Governor for “misbehaviour or inability to perform [their] duties property,” 81 provided the circumstances have been inquired into by one or more Supreme Court Judges appointed by, and reporting to, the Lieutenant Governor. 82 The inquiring Judge has extensive powers to subpoena evidence. The Judge under inquiry must be given the opportunity to be legally represented at the inquiry, to be heard, to produce evidence, and to cross-examine witnesses. It seems that the Lieutenant Governor need not adopt the report resulting from this inquiry (whether or not it recommends removal), but any order of removal and the report, must be laid before Parliament.
A.49 The Judicial Council can receive and investigate complaints against judges at any time, and has power to subpoena evidence for that purpose. 83 It may “review” the complaint with the judge in question and refer the complaint, and the result of its investigations, to the chief judge of the court to which the judge belongs, or to the Attorney General. It can recommend establishment of the type of inquiry by a Supreme Court judge referred to above. The Councils proceedings are not to be public.
A.50 In 1973 the Ontario Law Reform Commission recommended that it should be. mandatory for the Attorney General to consult the Judicial Council about appointments, that all appointees should have to have been admitted as lawyers at least 5 years previously, and that the two chief judges should have “general supervision and control” over judges in their respective divisions. 84 These recommendations have not been given statutory effect.
B. New Zealand
A.51 In New Zealand, the lowest courts are the District Courts. These courts were established in 1980 to replace the Magistrates Courts. 85 They have considerably greater jurisdiction than the previous courts, and their members are known as judges rather than magistrates. The courts jurisdiction may be exercised by justices of the peace in respect of some minor matters. 86
A.52 The Act which created the District Courts appointed all existing magistrates as judges of the new courts. 87 The basic provisions relating to appointment and discipline were not substantially changed. The judges are appointed by the Governor General from persons who either have held a legal practitioners practising certificate for at least 7 years or have been continuously employed as a Clerk of Court, and been eligible for admission as a practitioner, for at least 7 years. 88 They may be removed by the Governor General for “inability or misbehaviour.” 89 There are no special statutory provisions in relation to the procedures to be followed for appointment or discipline.
A.53 In 1978 a Royal Commission on the Courts 90 recommended that before making judicial appointments, including those to the proposed District Courts, the Government should seek suggestions from an Appointments Committee, and seek the Committee’s views on any other persons being considered by the Government. 91 The Committee would comprise the Chief Justice, Chief District Court Judge, two Government appointees (such as the Solicitor General and the Secretary for justice) and two persons nominated by the Law Society. In particular instances, the chief judge of the court to which the appointment related might be co-opted to the Committee. The Committee would not be “bound by strict procedural rule”, and “would employ the widest degree of consultation compatible with confidentiality”. 92 The Commission did not oppose the promotion of District Court Judges to higher courts but said that it should be confined to “exceptional circumstances”.93
A.54 The Royal Commission recommended legislative action in relation to procedures for removal of judges in order “to adequately protect a judge’s right to be heard in his own defence” 94 and perhaps to provide some sort of appeal or review. It did not consider that a sufficient need had been demonstrated for the introduction of formal procedures for consideration of sanctions less than removal but said that the Canadian Judges Act 1971 would be a suitable model if such procedures proved necessary. The Secretary for Justice had submitted to the Commission that such procedures were necessary and referred to” several cases over the last 25 years where the ability or the conduct of the magistrate had been the subject of responsible and repeated criticism”, and to the fact that “no satisfactory answer can now be given to such complainants. 95 The Commission recommended an improved procedure for enabling complaints about particular judges to be brought to the attention of the chief judge of the court in question but did not propose any specific statutory powers to investigate or to impose sanctions.
A.55 The Commission also recommended the establishment of district boards to monitor and report upon “all consumer aspects” of the court system.96 Each board could be composed of a lawyer, a lay person and a court officer.
A.56 None of the Commission's recommendations referred to above have been implemented to date.
C. United Kingdom
1. England
A.57 Much of the judicial work in the Magistrates’ Courts is handled on a part-time basis by justices of the peace, most of whom are non-lawyers. In many metropolitan areas, however, most of the work is handled by full-time stipendiary magistrates, who are broadly equivalent to magistrates in New South Wales. Stipendiary magistrates are appointed by the Crown on the recommendation of the Lord Chancellor. 97 They must have been admitted as a legal practitioner at least 7 years prior to appointment, 98 and most of them are drawn from the ranks of the private profession. They may be removed from office by the Crown on the recommendation of the Lord Chancellor on the ground of “inability or misbehaviour”. 99
2. Scotland
A.58 The Scots equivalent of an English stipendiary magistrate is a sheriff. There is a broad similarity between these offices in relation to appointment and discipline. 100 The following differences are significant for present purposes. First, sheriffs may be removed on the grounds of “inability, neglect of duty or misbehaviour”. 101 Secondly, the holders of the two most senior judicial offices in Scotland may investigate any sheriff s fitness for office and then report to the Government, and the Government may direct them to do so. 102 Thirdly, the Government cannot remove a sheriff save in accordance with a report from these judges, and the removal can be annulled by either House of Parliament. 103
FOOTNOTES
1. Queensland: Public Service Act, 1922-1965: Public Service Regulations of 1958, reg.106; South Australia: Justices Act. 1921-1982, s.11; Public Service Act, 1967-1981, s.8 exempts various judicial and statutory officers, but does not include stipendiary magistrates-, Victoria: Magistrates’ Courts Act, 1971, s.7(1).
2. Australian Capital Territory: Court of Petty Sessions (Amendment) Ordinance, No.4 of 1977: Tasmania: Stipendiary Magistrates Act, 1969: Western Australia: Stipendiary Magistrates Amendment Act No.15 of 1979.
3. Australian Capital Territory: Court of Petty Sessions Ordinance, 1930, s.8; Tasmania: Magistrates Act, 1969-1972, s.8(1).
4. Public Service Regulations of 1958 (Qld.), reg.106(5).
5. Justices Acy 1921-1982 (S.A.).
6. Magistrates Courts Act, 1971 (Vic.), s.7(1A); Public Service Regulations (Vic.), reg.28(1)(b).
7. Stipendiary Magistrates Act, 1957 (W.A.), s.4(2).
8. Australian Capital Territory: Court of Petty Sessions Ordinance, 1930, s.7(2)@ Queensland: Justices Acts, 1886-1975, s.11(1): South Australia: Justices Act, 1921-1982, s11; Tasmania: Magistrates Act, 1969-1972, s.4(1); Victoria: Magistrates’ Courts Act 1971, s.7(1): Western Australia: Stipendiary Magistrates Act, 1957, s.4(1).
9. Justices Act 1921-1982 (S.A.), s.11(2).
10. Australian Capital Territory: Court of Petty Sessions Ordinance, 1930, s.10A(1); Queensland: Public Service Acts, 1922-1965, s.24: South Australia: Justices Act, 1921-1982, s.11(2); Tasmania: Magistrates Act, 1969-1972, s.9(3),(4); Victoria: Magistrates Courts Act 1971, s.7(1): Western Australia: Stipendiary Magistrates Act, 1957, s.5B.
11. Public Service Superannuation Acts, 1958 (Qld.), s.77A; Public Service Regulations of 1958 (Qld.), reg.65.
12. Stipendiary Magistrates Act, 1957 (W.A.), s.5B(3).
13. Id., s.5C(2).
14. Magistrates Act 1969-1972 (Tas.), s,4(5).
15. Court of Petty Sessions Ordinance, 1930 (A.C.T.), ss.10H - 10L
16. Stipendiary Magistrates Act, 1957 (W.A.), s.5C(2), (3).
17. Eg., in Queensland.
18. Eg., in South Australia and Tasmania.
19. But note the distinction between full-time and part-time magistrates referred to in para.A.5.
20. Public Service Regulations of 1958 (Qld.), reg.105.
21. Justices Act 1921-1982 (S.A.), s.13a(1).
22. Magistrates Act, 1969-1972 (Tas.), s.6.
23. Advice received from the Law Department Melbourne, Victoria.
24. Queensland: Public Service Regulations of 1958, reg.106(5), South Australia: Justices Act, 1921-1982, s.13a: Tasmania: Magistrates Act, 1969-1972, s.6; Victoria: Magistrates Courts Act, 1971, s.8; Western Australia: Stipendiary Magistrates Act, 1957, s.4(4).
25. Justices Act, 1921-1982 (S.A.), s.13a.
26. Ibid.
27. Court of Petty Sessions Ordinance, 1930 (A.C.T.), s.10D(1).
28. Tasmania: Magistrates Act 1969-1972, s.9(1); Western Australia: Stipendiary Magistrates Act 1957, s5(1).
29. Public Service Act, 1922-1965 (Qld.), ss.27(1) (b),(2) and 29(1).
30. Id, s32.
31. Id, s.26.
32. Id, s.28.
33. South Australia: Public Service Act 1967, ss.58 and 64(1)(b)(iv); Victoria: Public Service Act, No.8656, ss.59 and 64(1).
34. Court of Petty Sessions Ordinance, 1930 (A.C.T.), s.10D(2). Note the omission of the word “proved” by comparison with the ground for removal.
35. Stipendiary Magistrates Act, 1957 (W.A.), s.5(3).
36. Magistrates Act 1969-1972 (Tas.), s.9(1).
37. Public Service Act 1922-1965 (Qld), ss.26, 28(1), (2), 29(1) and 32(3)(ii), (v)(d).
38. Id, s. 3 2 (2).
39. South Australia: Public Service Act, 1967, ss.61 and 64(1); Victoria: Public Service Act No.8656, s.59(2).
40. Australian Capital Territory: Court of Petty Sessions Ordinance, 1930, s.10D(1)@ Tasmania: Magistrates Act 1969-1972, s.9(1). Western Australia: Stipendiary Magistrates Act, 1957, s.5(2).
41. Magistrates Act 1969-1972 (Tas.), s.9(1).
42. Court of Petty Sessions Ordinance, 1930 (A.C.T.), s.10D(2)-(6).
43. Stipendiary Magistrates Act, 1957 (W.A.), s.5(3).
44. Id, s. 5 (3) (b).
45. Justices Act 1921- 1982 (S.A.), s.11(2).
46. For the procedures described in this paragraph see Public Service Act, 1922-1965, ss.32, 35, 35A and 36.
47. Id, s.32(3)(vii).
48. Id, s. 3 6 (6).
49. Stipendiary Magistrates Act, 1957 (W.A.), s.5(4).
50. Ibid.
51. Public Service Act 1922-1965 (Qld), s.27.
52. South Australia: Public Service Act, 1967, s.51, Victoria: Public Service Act, No.8656, s.57.
53. Public Service Act, 1922-1965 (Qld.), s.27(1)(a).
54. Fingleton v. Christian Ivanoff Pty.Ltd. (1976) 14 S.A.S.R. 530.
55. Falconer v. Howe and Baker [1978] W.A.R 81.
56. Id., p.84. The relevant provision of the Stipendiary Magistrates Act, 1957 (W.A.) was s.8(1), now repealed.
57. The civil jurisdiction of courts of petty sessions in the Australian Capital Territory was increased at the same time from a monetary limit of $1,000 to $2,500.
58. Court of Petty Sessions (Amendment Ordinance, No.4 of 1977 (A.C.T.).
59. Court of Petty Sessions (Amendment Bill (No.2) 1976) Explanatory memorandum, Hansard (A.C.T. Legislative Assembly), 27 October 1976, p.113.
60. Ibid.
61. Stipendiary Magistrates Act, 1969 (Tas.).
62. Stipendiary Magistrates Act Amendment Act, No. 15 of 1979 (W.A.).
63. Western Australia Parliamentary Debates (Assembly), 24 April, 1979, p.644.
64. Para.A.31.
65. Provincial Court Act, ch 341, 1979 (B.C.), ss.5(i) and 13(a).
66. Id, s. 5 (2).
67. Id, s.10(1).
68. Id, s. 17.
69. Id, s.6.1(1).
70. Id., s.6.1(2).
71. Id., s.6.1(4) (a).
72. Id, s.6.1(4).
73. Id, s.14.
74. Id, s.15(1).
75. Id, s.18(3).
76. Id, s.16.
77. Id, s.13.
78. The Provincial Courts Act, ch 369, 1970 (Ont), s.2.
79. Id, s.8(1)(a).
80. Id, s.7(1).
81. Id, s.4(1).
82 For the provisions concerning such inquiry, see id., s.4.
83. Id, s.8(5).
84. Ontario Law Reform Commission Report on the administration of Ontario Courts, 1971, Part 11, pp.9 and 22.
85. District Courts Amendment Act, No. 125 of 1979 (N.7-).
86. Summary Proceedings Act 1957 1980 (N.Z.), s.4.
87. District Courts Amendment Act No.125 of 1979 (N.Z.) s.19(2).
88. Id, s,6. It is also necessary to have worked in the Department of justice (whether as a Clerk of Court or otherwise) for at least 10 years.
89, Magistrates Courts Act No.16 of 1947 (N.Z.), as amended, s.7.
90. Royal Commission on the Courts, Report, (1978); Beattie, J., Chairman.
91. Id., p.200.
92. Id, p.202,
93. Id, p.204.
94. Id, p.217.
95. Id, pp.218-219.
96. Id., p.252.
97. Administration of justice Act 1973 (U. K), s.2(2).
98. Id, s.2(1).
99. Id, s.2(2).
100. Sheriff Courts (Scotland) Act- 1971 (U.K-), ss.5 and 12.
101. Id., s.12(1)(b).
102. Id, s.12(1).
103. Id, s.12(3)(a).
