I. TERMS OF REFERENCE
A. Matters to be Considered
1.1 On 9 August 1983 the Attorney General and Minister of Justice for New South Wales, the Hon D.P. Landa, LLB., M.LC., made the following reference to the Commission:
“To inquire into and report on the following matters
(a) the procedures and criteria which should be followed and applied for selection of the persons to be first appointed as Magistrates under section 12(1) of the Local Courts Act- 1982;
(b) having regard to
(i) the first year’s operation of the Local Courts Act, 1982, and
(ii) the objectives of the Act,
the amendments, if any, which should be made to the Act and to any other legislation affecting Magistrates or the structure and Organisation of Local Courts (including the procedures and criteria which should be followed and applied for selection of persons to be appointed as Magistrates): and
(c) any incidental matters.
Pursuant to section 13(1) of the Law Reform Commission Act 1967, I direct that the Commission make an interim report as soon as possible. The interim report should deal with the matters referred to in paragraph (a), and should outline the approach that the Commission proposes to take to the examination of the matters referred to in paragraph (b).”
B. Constitution of the Division
1.2 On 22 August 1983 the Chairman of the Commission pursuant to section 1.2A(1) of the Law Reform Commission Act, 1967, and following completion of preliminary work formally constituted a Division of the Commission for the purposes of this reference. The following members of the Commission comprise the Division:
C. Terminology
1.3 The Local Courts Act 1982, (“the Act”) was assented to on 24 December 1982 but most of its provisions will not commence until a day’s appointed by the Governor and notified by proclamation published in the Government Gazette (“the appointed day”). On that day, Courts of Petty Sessions will be abolished and Local Courts will take their place. Subject to some minor and presently irrelevant exceptions, Local Courts will be presided over by persons appointed under section 12(1) of the Act as “Magistrates”. These Magistrates will take the places of the persons who, immediately before the appointed day, were employed in the position of “ stipendiary magistrate” and who presided over Courts of Petty Sessions. Where we speak in this Interim Report of “Magistrate(s)”, we refer to person(s) to be appointed to preside over Local Courts, and where we speak of “former magistrate(s)” or “stipendiary” magistrates, we refer to person(s) who, immediately before the appointed day, preside over Courts of Petty Sessions.
D. “Phases I and II”
1.4 Thetermsofreferenceclearlyindicatethatwemustdivideourworkintotwophases.For convenience, we call them “Phase I” and “Phase II”. Phase I is concerned, first, with the matters referred to in paragraph(a) of the terms of reference and, secondly, with the approach that we should take to our examination of the matters referred to in paragraph (b). This Interim Report represents the completion of Phase I. Work on Phase II, the balance of the terms of reference, is continuing.
E. Automatic Appointment
1.5 Paragraph (a) of the terms of reference speaks of “the procedures and criteria which should be followed and applied for selection of the persons to be first appointed as Magistrates. This language could conceivably be read as precluding us from considering whether stipendiary magistrates should automatically be appointed as Magistrates. The word “selection” might imply that a decision has already been taken to select Magistrate from a range of qualified persons, and not merely from the ranks of stipendiary magistrates. It would follow, if this interpretation was accepted, that our role is limited to formulating procedure and criteria appropriate to a wide-ranging process of selection.
1.6 We take the view, however, that the terms of reference should not be interpreted as foreclosing such an important issue. None of the submissions so far made to us contend that the terms of reference should be interpreted in this way. Many, especially those from stipendiary magistrates, assume that the contrary is the case. We think that the language of the terms of reference is consistent with our considering the arguments for and against automatically appointing stipendiary magistrates as Magistrates, and we do so in Chapter 4.
II. BACKGROUND TO REFERENCE
A. The Local Courts Act, 1982
1.7 Many stipendiary magistrates have argued that their judicial independence and recognition as judicial officers are jeopardised by their inclusion in the administrative structure of the Public Service. The enactment of the Local Courts Act gives substantial effect to their views. Section 12(4) of the Act for example, provides:
“The provisions of the Public Service Act, 1979, shall not apply to or in respect of the appointment of a Magistrate and a Magistrate shall not, in his capacity as a Magistrate, be subject to those provisions during his term of office as a Magistrate.”
Likewise, section 18(1) goes some way towards equating the position of a Magistrate with that of a Judge in that a Magistrate is to hold his or her office during “ability and good behaviour”, the same expression as applies to Judges of the District Court. We consider these and other provisions of this Act in Chapter 3 where we also mention some of the statutory provisions which apply to Judges of the District Court and the Supreme Court.
B. The Street Royal Commission
1.8 On 11 May 1983, the Chief Justice of New South Wales, the Hon Sir Laurence Street, KC.M.G., K St J., received a Royal Commission requiring him to inquire into two matters. The first matter was
“whether on or about 11 August 1977, Murray Frederick Farquhar [a former Chairman of the Bench of Stipendiary Magistrates] influenced or attempted to influence the outcome of committal proceedings on nine charges laid under section 173 of the Crimes Act, 1900, against Kevin Emery Humphreys, which charges were heard by Kevin William Jones, Stipendiary Magistrate, on 11 and 12 August, 1977, and determined by him in favour of the defendant on 12 August 1977”.
1.9 On 28 July 1983 the Chief Justice presented his findings and report. In an appendix to the report, he said:
“The Local Courts Act is the product of work and discussions extending back over some three or four years. It will be significant in reassuring to individual magistrates their freedom, in the discharge of their judicial duties, from exposure to influence by persons in authority over them. Moreover, the effect of the reform upon the stature and morale of the magistracy, both as they themselves perceive it, and as it will be perceived by the community at large, will be significant.
It may well be that in the future working out of the reforms embodied in the new Act amendments and adjustments of the legislation will be seen to be desirable. Indeed, this is to be expected in a reform such as this. The early implementation of the provisions of the new Act will however, go far towards meeting such public disquiet regarding the structure and administration of the Magistrates’ Courts as may have been generated in some quarters by the events examined in the present Inquiry. At the present stage the necessary preliminary consideration is being given to the actual personnel of the magistracy and other administrative matters relevant to be taken into account in proclaiming a new Court and making appointments to it. It is obvious that this must be carefully and thoroughly done. Such decisions should not be rushed through overnight as it were. At the same time I am firmly of the view that all due expedition should be given to the implementation of this reform”.1
1.10 In announcing “a full and immediate review of the structure of the State’s Magistracy by the Law Reform Commission of New South Wales, “the Premier, the Hon N.K. Wran Q.C., stated that the review would “fulfil” the recommendations of the Chief Justice in the Royal Commission report.2 The reference to us therefore represents one of the responses of the Government to the findings and report of the Chief Justice.
III. CONDUCT OF PHASE I
A. An Issues Paper
1.11 We have not yet decided whether, for the purposes of Phase II of our work on this reference, we should follow our custom of publishing a preliminary paper seeking comments from a wide range of people on what we perceive to be the main issues involved. Time constraints have, however, precluded us from taking any action of this kind in relation to Phase I.
B. Research
1.12 For the purposes of Phase I, we have, however undertaken a comparative study of the law governing magistrates in other Australian States and Territories, New Zealand, the United Kingdom Canada and the United States. Some of the material from this study appears in Appendix A. We have also considered the history of the proposals for legislation conferring independence on the magistracy in New South Wales. This has been done principally through an examination of departmental files.
C. Submissions
1.13 We wrote to all stipendiary magistrates in New South Wales and invited submissions on any matter coming within the scope of the terms of reference. The submissions made in response to this invitation were made promptly, and were generally helpful In addition, we extended a similar invitation to a number of persons and organisations whom we believe to have a special interest in the subject matter of the terms of reference, including two organisations of stipendiary magistrates, the New South Wales Bar Association and the Law Society of New South Wales. The persons and organisations who responded to the invitation are identified in Appendix B. All submissions, except those made on a confidential basis, may be inspected at our offices.
D. Consultations
1.14 While the terms of reference do not contain any guidance on the question of consultations, the public announcement by the Premier stated that the review would be undertaken in consultation with the Chief justice of New South Wales, Sir Laurence Street, the Chief Judge of the District Court of New South Wales, His Honour Judge J.H. Staunton, C.B.E., Q.C., and the Chairman of the Bench of Stipendiary Magistrates, Mr. C.R. Briese. We have consulted with each of these office holders and with other persons. Included in the latter group are the following: the Chairman of the Public Service Board, Mr. David Moore, the Under Secretary of the Department of the Attorney General and of Justice, Mr. T.W. Haines; the President of the Law Society of N.S.W., Mr D. E. McLachlan, a representative of the Commissioner of Police, Commissioner C.R. Abbott Q.P.M., and representatives of the Stipendiary Magistrates’ Vocational Branch of the Public Service Association of N.S.W. and the N.S.W. Petty Sessions Officers’ Association.
IV. THE STRUCTURE OF THIS INTERIM REPORT
1.15 We now describe briefly the structure and contents of this Interim Report.
- Chapter 2 is concerned with those aspects of the existing law and practice relating to Courts of Petty Sessions and stipendiary magistrates which are relevant to the inquiry.
- Chapter 3 contrasts the existing law and practice described in Chapter 2 with the provisions of the Local Courts Act 1982.
- Chapter 4 deals with our recommended approach to the first appointments as Magistrates under the Local Courts Act, 1982.
- Chapter 5 explains in detail the way in which the selection process could operate, with particular reference to the appointments committee that we suggest should be established.
- Chapter 6 outlines in very general terms the approach that we propose to take to Phase 11 of our work on this reference, and lists a number of issues which may need to be considered during that Phase.
- Appendix A is a short statement of the results of the comparative study of the law governing magistrates referred to in paragraph 1.12.
- Appendix B lists the names of the persons and organisations who have made public submissions to us.
FOOTNOTES
1. Report of the Royal Commission of Inquiry into Certain Committal Proceedings against K E. Humphreys (July 1983), p.98.
2. Media release, 3 August 1983.
3. See note 2 above.
