I. THE BACKGROUND¹

A. The Participants

3.1 Many persons and organisations were involved in the policy discussions which preceded the enactment of the Local Courts Act, 1982. The persons included the Chairman of the Bench of Stipendiary Magistrates, Mr. C.R Briese; the Deputy Chairman, Messrs. KS. Anderson and B.R Browm the Under Secretary of the Department of the Attorney General and of justice, Mr. T.W. Haines; his Deputy Under Secretary, Mr. W.J. Robinsom a former Attorney General the Hon. F.J. Walker, Q.C., M.P., and the Premier, the Hon N.K Wran Q.C., M.P. Organisations involved included the N.S.W. Petty Sessions Officers Association the Conference of Chamber Magistrates of New South Wales, the Stipendiary Magistrates’ Vocational Branch of the Public Service Association of New South Wales and the Public Service Board. Divergent views on the merits of various provisions proposed for the Act were strongly held and argued.

B. The Public Service Act, 1979

3.2 The Public Service Act, 1979, commenced on 28 September 1979, some four months after Mr. C. R Briese had been appointed Chairman of the Bench of Stipendiary Magistrates. In January 1980, Mr. Briese wrote a letter to an Assistant Under Secretary of the Department saying, in effect, that stipendiary magistrates should be taken outside the application of the Public Service Act, 1979. The details of all that followed need not be recounted here but a summary is given in the following paragraphs by way of background information

3.3 In a later submission to the then Attorney General, the Chairman and his two Deputies argued that the changes effected by the Public Service Act, 1979, increased the power of the executive over the magistracy and therefore made an already unsatisfactory situation even worse.

3.4 They pointed out that under the Public Service Act, 1902, stipendiary magistrates were subject to the control of the Public Service Board. Under the Public Service Act, 1979, this control was, it was argued, transferred to the Minister of justice. The transfer was effected, in their view, by the following provisions of the new Act:

“Section 128. Nothing in this Act shall be construed as restricting the ordinary and necessary departmental authority of any Minister with respect to the direction and control of staff and work.”

“Section 47. (1) A Departmental Head is responsible to the appropriate Minister for the general conduct and the efficient effective and economical management of the functions and activities of the Department.

(2) For the purposes of exercising his responsibility under subsection (1), a Departmental Head may take such action as he deems appropriate and as is not inconsistent with the functions of the Board specified in this Act”

“Section 112(1). (1) Where the Department Head considers it to be in the interests of the Department to do so, he may direct the transfer of an officer from one position in the Department to another position in the Department equivalent in classification and salary to the first-mentioned position provided the officer possesses the qualifications... in respect of that other position”

The position of stipendiary magistrate was, they argued, to be contrasted with that of among others, judges of the Supreme Court and the District Court, masters of the Supreme Court, crown prosecutors and public defenders. The holders of these offices were not subject to the provisions of the Public Service Act, 1902, and are not subject to the provisions of the Public Service Act 1979.

C. Judicial Independence

3.5 The submission from the Chairman and his Deputies made many references to the concept of Judicial independence. They cited texts and speeches to the effect of the following:

• that an independent judiciary is the surest protection against abuse of power;
• that only an independent judiciary can impartially check administrative authorities exceeding their power and direct the performance of duties due by public officials to private citizens;
• that the independence and recognition of magistrates is jeopardised by their inclusion in the administrative structure of the general public service;
• that the independence of magistrates should be the same as that of judges.

They also relied on judgments of the Full Court of the Supreme Court of South Australia delivered in 1976 in a case where it held that a magistrate was disqualified by bias from hearing and determining proceedings commenced by a member of the same Department of the Public Service as himself.² In the words of two of the judges:

“... there are strong grounds for maintaining that no person holding judicial office should be in the Public Service, more especially if he or she has to hear and determine prosecutions or civil causes in which the Crown or some instrumentality thereof is a party......”³

In pursuing this line of argument, the submission added:

“... there are today many more cases before magistrates which are charges or informations authorised by the Minister .... That the Minister has the power to allot one of his officers, a magistrate who by the 1979 Act is now directly under his control to adjudicate upon a prosecution which he himself launches, is an unacceptable state of affairs. At the very least such arrangement creates a situation whereby the appearance of justice being done is simply disregarded.”

3.6 As part of the argument for independence the Chairman and his Deputies also said that the salary of a stipendiary magistrate should be determined by the Statutory and other offices Remuneration Tribunal and not by the Public Service Board. They again pointed to the difference between their position and that of judges, judicial salaries being determined by the Tribunal.

3.7 In the event, the Premier, the then Attorney General and the Public Service Board acknowledged the weight of the arguments in favour of magisterial independence, although none of them necessarily accepted all the proposals put forward by the Chairman and his Deputies.

D. A Related Issue: “Opening up the Magistracy”

3.8 One hundred and three of the presently serving 105 stipendiary magistrates held office in the Public Service at the time of their respective appointments and 99 of the 103 had held office in Magistrates Courts Administration. Any proposal to take stipendiary magistrates outside the application of the Public Service Act 1979, and to accept applications for appointment to that office from persons outside the Public Service was likely to meet opposition from persons aspiring to the office. Many members of the Petty Sessions Officers Association and the Conference of Chamber Magistrates had, and have, such aspirations and they expressed their opposition to the proposal. In January 1982, members of the Association held a stop work meeting (the first in the history of the Association) and voted overwhelmingly ‘to oppose outside appointments to the magistracy. Shortly stated, the Associations view seemed to be that the great majority of magistrates should be appointed from officers serving in Magistrates Courts Administration because outside appointments would seriously endanger the career prospects of its members and, if those prospects were to be endangered, morale would deteriorate and it would not be possible to maintain the high quality of public service provided by its members. The views of the Conference of Chamber Magistrates seemed to be similar to those of the Association. The Conference emphasised the special knowledge gained by its members in the course of long service in Magistrates Courts Administration and the advantage that this service must give them over “outsiders”, whether from outside the Public Service itself or outside Magistrates Courts Administration in the effective performance of magisterial duties. Both the Association and the Conference stressed that the prospect of eventual appointment as a stipendiary magistrate was the incentive that prompted officers in Magistrates Courts Administration to undertake special studies, and to tolerate long service in country areas and frequent transfers from one area to another. It was argued that in the absence of this incentive there would be a marked reluctance on the part of members to accept these conditions of service.

3.9 The view of Government was that the position of Magistrate should be open to all persons who are qualified f or appointment Once this view became generally known interest concentrated on the processes of selecting the persons to be appointed. The Stipendiary Magistrates’ Vocational Branch and the Petty Sessions Officers Association argued that the new Act should itself constitute a committee the function of which would be to interview and select suitable persons for appointment as vacancies arose. It was decided however, that ad hoc advisory committees would be constituted but that the final decision would be a matter for Cabinet upon the recommendation of the Minister.

E. The Views of the Magistracy

3.10 The matter of the independence of the magistracy was raised at conferences of stipendiary magistrates in July 1980 and July 1981. On the first occasion a motion calling for independence was carried by a majority of 37 to 35. On the second occasion a like motion was carried by a majority of 78 to 1. We can only speculate as to the reasons for the change in voting. It has been put to us, however, that the persons voting against the 1980 motion did so because they wished to assist the persons who were then opposing the proposal to “open up” the magistracy. By 1981, when the proposal for outside appointments seemed likely to be adopted, this reason was much less compelling.

F. Opposition to “Independence”

3.11 The persons who did not support the move to take stipendiary magistrates outside the application of the Public Service Act, 1979, appear to have done so for a number of reasons. In summary, these seem to have been:

• The status of the magistracy as a whole depends almost entirely on every holder of the office demonstrating his or her fitness for the office; a new Act would not confer anything more than “ paper" status; real status has to be earned, it cannot be conferred.
• Conferring even “paper” independence might lead to the magistracy seeking conditions of service comparable to those of judges of the Supreme Court and the District Court, including higher salary, non-contributory pensions and longer leave.
• It might be difficult to deal with conduct and discipline if the provisions of the Public Service Act, 1979, could not be invoked.
• There would be an adverse impact on the career prospects of officers within Magistrates Courts Administration if an impetus to outside appointments were given by removing the links with the Public Service Act, 1979.

II. RELEVANT PROVISIONS OF THE ACT

A. Qualifications for Appointment

3.12 By virtue of section 12(2) of the Local Courts Act a person is qualified to be appointed as a Magistrate if he or she is, or is eligible to be appointed as:

• a barrister or solicitor of the Supreme Court of New South Wales;
• a barrister or solicitor, or a barrister and solicitor, of -

(a) any court in any other State, or of a Territory, of Australia or

(b) the High Court of Australia.

When the Act commences, the Public Service Act, 1979, and in particular section 117 of that Act will cease to apply to the appointment of Magistrates. The minimum age requirement of 35 years will be removed and lawyers from anywhere in Australia, not only from New South Wales, will satisfy the qualification test In addition although not strictly matters of qualification persons seeking appointment will not have to satisfy a statutory condition of being willing to reside permanently in a particular district (the regulations under the Act may, however, impose such a requirement), and those applying for appointment from outside the Public Service will compete, so far as statutory conditions are concerned, on an equal footing with those who apply from within the Service. This last statement is limited to statutory conditions because, in practice, some preference may be given to applicants from within the Service. For present purposes, the significance of these changes is that the number of potential applicants for appointment as Magistrates will be very high.

B. Criteria for Selection

3.13 Apart from specifying the basic qualifications for appointment as a Magistrate, the Act is silent as to the criteria which an applicant for appointment should satisfy. Our terms of reference enjoin us to make recommendations as to what they should be.

C. Procedure for Appointment

3.14 Section 12(1) of the Act merely provides that the Governor may, by commission under the public seal of the State, appoint any qualified person to be a Magistrate. The practical effect of this provision is that the Minister will make a submission to Cabinet in which he will recommend the appointment of a particular person or persons. Our thinking, and that of most of the persons who have made submissions to us, is, at least in relation to the first appointments, that the Minister should have the assistance of an advisory appointments committee. There is widespread agreement that the Chief Justice of New South Wales and the Chief Judge of the District Court should be invited to serve on that committee.

D. Duration of Appointment

3.15 Sections 18 to 21 of the Act are concerned with matters touching the duration of a Magistrate’s appointment Section 18 speaks of “Magistrates tenure”, section 19 of “Suspension and retirement from office in certain cases”, section 20 of “Vacation of office”, and section 21 of “Additional terms of office”. Each of these provisions will be examined in detail in the course of our work on Phase II of the reference but, for the purposes of Phase I, we are mainly concerned with section 18(1) and section 18(2) (a). These provisions are to the effect, first, that subject to the Act as a whole, a Magistrate shall hold his of f ice “ during ability and good behaviour’ and, secondly, that the Governor may remove a Magistrate from his office for “incompetence, misbehaviour or contravention of the terms and conditions of his service”.

3.16 By way of explanation we note that section 22 of the Act provides that in general the terms and conditions of the service of Magistrates “shall be as determined by the Governor from time to time”. Also, section 28 of the Act empowers the Governor to make regulations with respect to the terms and conditions of service of Magistrates. The form of the regulations has not been finally settled but we are told that under the heading “Terms and Conditions of Service” the present draft has only two provisions, one relating to leave entitlements and the other to residency within districts.

3.17 Although the provision that a Magistrate shall hold his office “during ability and good behaviour” is expressed to be “Subject to this Act”, the provision itself is intended to give a degree of judicial independence to Magistrates which stipendiary magistrates do not have. The provision is to be contrasted with the provisions applicable to judges of the Supreme Court and the District Court. Section 27 of the Supreme Court Act, 1970, is expressed to be subject to the Judges Retirement Act 1919, but it provides that the commission of every judge “shall be, continue and remain in force during his good behaviour. The section provides for the removal of a judge by the Governor “upon the address of both Houses of Parliament”. Section 14 of the District Court Act, 1973, is also expressed to be subject to the judges Retirement Act, 1918, but it differs from the comparable provision in the Supreme Court Act in that it says that a judge shall hold his office “during ability and good behaviour, the same expression as is to apply to Magistrates. On the other hand, the District Court Act enables the Governor to remove a judge only for “inability or misbehaviour” and only if, before being so removed, he or she has been given 21 days notice of the intention to remove and within that time he or she has been given an opportunity of making representations to the Governor and of being heard before the Governor in Council.

3.18 We spoke of the Liquor Act, 1982, in paragraph 2.37. We find it anomalous that section 8(10) of that Act contains provisions relating to the removal of a licensing magistrate which are different from those contained in section 18(2) of the Local Courts Act 1982, relating to the removal of Magistrates. For the purposes of removal the office of licensing magistrate is equated with that of a judge of the District Court but the office of Magistrate is not so equated.

E. Salaries and Grading

3.19 In speaking of the background to the Act, we mentioned in paragraph 3.7 the importance that the stipendiary magistrates placed upon the manner in which their remuneration is determined. By virtue of section 24(1) of the Act, Magistrates will now be entitled to be paid remuneration in accordance with determinations made under the Statutory and Other Offices Remuneration Act 1975. This provision represents another break from Public Service Board and Ministerial influence and will move Magistrates closer to the position of judges of the Supreme Court and the District Court whose remuneration is, as we have mentioned, also determined in accordance with the Statutory and Other Offices Remuneration Act, 1975. It is thought that this move will be seen by many magistrates as enhancing their independence and status.

3.20 We are told that it is presently intended that when the Act commences the regulations will provide for the following classifications of Magistrates.

• Chief Magistrate.
• Deputy Chief Magistrates.
• Magistrates of such grades as the Statutory and Other Offices Remuneration Tribunal shall determine.

The Tribunal will be empowered to determine grades for Magistrates and the ranking of those grades. A Magistrate’s commission will specify the grade to which he or she is appointed and the Minister will be empowered to appoint to another grade if, and only if the Chief Magistrate certifies that the Magistrate is able to perform satisfactorily all the functions performed by Magistrates holding the other grade.

F. Reports to the Minister

3.21 The Chief Magistrate will be required by virtue of section 27(a)(iii)of the Act to submit to the Minister reports on any matters relating to discipline which arise and which have affected, or may affect the availability of Magistrates or the disposal of business by the Local Courts. Regulations may also be made under section 28(1)(d) of the Act providing for the establishment of committees to advise the Chief Magistrate. We are told that the present draft of the regulations empowers the Chief Magistrate to establish a committee of Magistrates for the purpose of conducting an inquiry into, and reporting to the Chief Magistrate on:

• any allegation of incompetency of, or misbehaviour by, a Magistrate.
• any alleged contravention by a Magistrate of the terms and conditions of his or her service as such

These provisions relating to incompetence and misbehaviour, and the extent to which they are, or may be, used will be examined in the course of our work on Phase II of this reference. We mention them here because, to the extent that they may be said to allow a form of “peer review”, they touch upon the new independence of Magistrates and the consequences that flow from that independence. Also, we foreshadow that in the course of our work on Phase II we will examine the scope of section 27(a)(iii) and the adequacy of the powers of the Chief Magistrate with respect to allegations about the competency and behaviour of other Magistrates. In the course of that examination we will also consider general questions touching what ought to be the legal relationship between the Minister and the Chief Magistrate.

G. Temporary Appointments

3.22 Section 13(1) provides for temporary appointments of Magistrates. The scope of the subsection is not free from doubt and we reproduce it in full:

“Where the Governor considers it appropriate that a Magistrate should be appointed for a particular term of office, the Governor may, in the commission of the Magistrate’s appointment -

(a) by reference to dates, specify the term of office for which the Magistrate is appointed; and

(b) fix terms and conditions (including terms and conditions requiring him to exercise his functions at a particular place) subject to which the Magistrate shall serve in his office.”

It can be argued that the subsection enables the appointment of a Magistrate for a particular term of office and without any other special terms and conditions. On the other hand, it can be argued that the words “the Governor may” should, in the context in which they are used, be construed as “ the Governor shall”. On the former approach, a stipendiary magistrate could be appointed a temporary Magistrate and exercise the functions of a Magistrate during the term of the appointment anywhere in New South Wales, unless especially restricted to a particular place by his or her Commission. On the latter approach it could be that such a person could exercise those functions only at a particular place. It seems that the provision was intended only to allow a temporary Magistrate to be appointed for such a period as would enable him or her to dispose of arrears of work at a particular court. As indicated, the question of whether the provision allows a wider interpretation is not free from doubt. We raise the doubt here because it has been suggested to us that if it were thought that a particular stipendiary magistrate was not now suitable for appointment as a Magistrate, he or she could be appointed as a temporary Magistrate and his or her position could be reviewed at a later date. We do not believe that the provision was intended to be used for this purpose and, even if it could be, we would not recommend that it be so used unless in exceptional circumstances. We are presently unable to envisage any such circumstance, except perhaps where a stipendiary magistrate is ill and the likely duration of his or her illness is unknown.

H. Stipendiary Magistrates not Appointed Magistrates

3.23 The last of the provisions of the Act with which we are immediately concerned is clause 5(3) of Schedule l. For the purposes of the clause, the expression “former Magistrate” means a person who, immediately before the commencement of the Act was employed under the Public Service Act, 1979, in the position of stipendiary magistrate. The clause itself says:

“Any former magistrate who does not accede to the office of a Magistrate on the appointed day shall if he has not attained the age of 60 years, be appointed to a position in the Public Service not lower in classification or salary than that which he held immediately before that day.”

The importance of this provision needs no elaboration. It does, however, need some elucidation.

3.24 Clause 5(3) gives rise to questions of both legal and practical importance. The clause, in effect, commands that a former stipendiary magistrate be appointed to a position in the Public Service “not lower in classification or salary” than that which he or she held immediately before the appointed day. What are the legal consequences of a command of this kind. What is a position “not lower in classification or salary”? And apart from the legal consequences, what are the practical consequences if there is no such position or no such available position?

3.25 Before attempting to answer these questions, we think it helpful to consider what would have been the position of a stipendiary magistrate not acceding to the office of magistrate if clause 5(3) had not been enacted. Comparable problems are not uncommon Departments, for example, are often restructured and the positions of some officers are abolished. If the position of a Special Division officer (a Department Head) under the age of 60 years is abolished, he or she is entitled, by virtue of section 52(6) of the Public Service Act, 1979, to be appointed to another position in the Public Service not lower in classification and salary than that which he or she held immediately before he or she became a Special Division officer. We note that whereas clause 5(3) speaks of “classification or salary”, section 52(6) speaks of “classification and salary”. Officers who are not special Division officers and whose position is abolished may attract the provisions of sections 113 and 114 of the Public Service Act 1979. Under section 113 the Board may take such steps as are practicable to secure the transfer of excess staff to vacant positions in the Public Service at existing salaries. It however, the excess cannot usefully be employed in the Public Service, their services can be dispensed with by the Board with the approval of the Governor. Under section 114, if an officer in the Public Service is in receipt of a greater salary than the maximum fairly appropriate to his or her work, a procedure similar to that used in section 113 cases maybe followed, and the officer’s salary maybe reduced to the maximum determined by the Board to be appropriate to the work being performed. It may be, however, that clause 5(3) does not exclude the operation of sections 113 and 114.

3.26 As we understand the present view of the Public Service Board, upon the appointed day there will be no work in the Public Service reasonably similar to the work now being done by stipendiary magistrates. It can be argued therefore that there will be no position in the Public Service not lower in classification to which a stipendiary magistrate could be appointed. The object of the reference to “classification”’ in clause 5(3) may have been to guard against the appointment of a stipendiary magistrate to a position in the Public Service which though carrying an equivalent salary, is in some way inappropriate or demeaning in status having regard to that persons former position if, in practical terms, this object cannot be achieved, what follows:

3.27 One possibility would be the exercise by the Crown of its common law right to dispense with the services of its servants at pleasure. This right is preserved by section 118 of the Public Service Act 1979, which provides as follows:

“Nothing in this Act shall be construed or held to abrogate or restrict the right or power of the Crown as it existed immediately before the commencement of this section to dispense with the services of any person employed in the Public Service.”

As we understand the position, in practice the common law right is exercised only in case’s of gross misconduct but in law there appears to be no condition precedent to its exercise. If it were to be exercised by the Governor in Council we doubt that any appeal would lie to the Government and Related Employees Appeal Tribunal or that a dismissed stipendiary magistrate could apply under section 20A of the Industrial Arbitration Act, 1940, for an award directing the Public Service Board to reinstate him or her to a position not less advantageous than that held prior to dismissal. An application under section 20A could be made, however, by a union of which he or she was a member.

3.28 We return to the matter of stipendiary magistrates who are not appointed Magistrates in Chapter 5.

FOOTNOTES

1. Many of the statements of fact made in this chapter are based on our reading of departmental files. These files are not public documents and hence we do not identify particular documents.

2. Fingleton v. Christian Ivanoff Pty.Ltd. (1976) 14 S.A.S.R. 530.

3. Id., at p.546, per Wells and Sangster, JJ.