I. INTRODUCTION

A. Recapitulation

4.1 Proposals for “an independent magistracy” were made by the Chairman of the Bench of Stipendiary Magistrates, Mr. C.R Briese, in January 1980. These and related proposals were examined in detail and at length by the Government. the magistracy, and unions representing magistrates and Petty Sessions officers. The proposals were adopted, with some modifications, by the Local Courts Act, 1982.

4.2 The operative provisions of the Act have not yet commenced but, when they do, Local Courts presided over by Magistrates will take the place of Courts of Petty Sessions presided over by stipendiary magistrates. Unlike stipendiary magistrates, Magistrates will not, in their capacity as Magistrates and during their terms of office as Magistrates, be subject to the provisions of the Public Service Act 1979. They will hold office during ability and good behaviour. In short stipendiary magistrates are public servants performing judicial duties but Magistrates will be judicial officers.

4.3 It was intended at one time that the Act would commence on 30 May 1983. But 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 involved, among others, a Chairman of the Bench of Stipendiary Magistrates (not the present Chairman) and a serving stipendiary magistrate. At about this time, a decision was made to defer the commencement of the Act On 28 July 1983 the Chief Justice presented his findings and report, and commented to the effect that the making of the first appointments as Magistrates must be done “carefully and thoroughly”.¹ On 9 August 1983 the Attorney General and Minister for Justice, the Hon. D.P. Landa, LLB., M.LC., made the reference to this Commission which is the subject of this Interim Report The Report deals with the procedures and criteria which should be followed and applied for selection of the persons to be first appointed as Magistrates.

B. The Need for Expedition and Care

4.4 Although the Chief justice was concerned to ensure that the first appointments under the Act are made carefully and thoroughly, he also expressed his firm view that “all due expedition” should be given to the implementation of the reforms that are embodied in the Act.² The Attorney General expressed similar views where in our terms of reference, he directed us to make this Interim Report “as soon as possible”. We share these concerns and are conscious of the fact that in a circular of 21 April 1983 addressed to all stipendiary magistrates their Chairman acting in good faith told them that they would all accede to the office of Magistrate. To the extent that our terms of reference now cast doubt on their positions, many stipendiary magistrates may well be uncertain of their futures. It is right that uncertainty of this kind be resolved as soon as possible. But, on the other hand, it is important to ensure that every person who is appointed to the Local Courts as a Magistrate has the special qualities that are needed for that office. In our view, these Courts, and the persons who preside over them will play an increasingly important role in the administration of justice in New South Wales, and we anticipate that the recommendations to be made in our final Report will reflect this view. It would be a matter for regret if the future of the Local Courts were to be in any way clouded because of haste or ill-considered initial appointments.

C. The Structure of this Chapter

4.5 The balance of this chapter is in two parts. In Part II we consider whether all stipendiary magistrates should be appointed automatically under the Local Courts Act. We conclude that they should not. In Part III we consider three options for the appointment of Magistrates, each of which assumes that stipendiary magistrates will not be automatically appointed to the position These options are

• to appoint all stipendiary magistrates except those, if any, who are removed in consequence of disciplinary proceedings;
• to open all Magistrates’ positions to applications from all qualified persons, so that stipendiary magistrates would compete on an equal footing with other applicants;
• to invite, in the first instance, only stipendiary magistrates to apply for appointmentandtoconsidertheirapplicationsbeforeinvitingapplications from qualified persons for any vacancies.

II. AUTOMATIC APPOINTMENT

A. Arguments for Automatic Appointment

1. Introduction

4.6 Automatic appointment is, not surprisingly, the approach preferred by the Stipendiary Magistrates’ Vocational Branch of the Public Service Association of N.S.W. In its written submission to us, the Branch argues strongly that “all presently serving magistrates should be reappointed when the Local Courts Act comes into force”.³ The Branch’s arguments for automatic appointment, and similar arguments, are referred to in the following paragraphs.

2. Demonstrated Fitness for Appointment

4.7 The discipline and conduct provisions of the Public Service Acts of 1902 and 1979 have not been invoked in relation to any serving stipendiary magistrate. It is argued that it should accordingly be presumed that all stipendiary magistrates are efficient and competent in the performance of their duties. The duties of Magistrates will on this argument, be the same as those of stipendiary magistrates, and the latters’ presumed efficiency and competence entitle them to automatic appointment as Magistrates.⁴

3. Judicial Independence

4.8 Although subject to the provisions of the Public Service Act 1979, stipendiary magistrates nonetheless perform judicial duties. Practices and conventions designed to preserve judicial independence should, it is argued, also apply to them. When the Supreme Court Act, 1970, and the District Court Act, 1973, were enacted, they provided, in effect, that no Judge could, by reason of the enactment, be denied his or her commission as a judge. The Local Courts Act does not contain any comparable provision but if its enactment is seen to be used as a means of removing any stipendiary magistrate from office, great harm will be done to the principle of judicial independence. Will not the independence of Magistrates be at risk if it is now demonstrated that an act subsequent to the Local Courts Act can be used to remove them from office? This argument assumes that the Local Courts Act continues the present system of Courts of Petty Sessions in the same way as, for example, section 22 of the Supreme Court Act, 1970, continued the Supreme Court of New South Wales as the State’s superior court In short, the argument says that the Local Courts Act effects only “cosmetic” changes, that Local Courts will be the same as Courts of Petty Sessions, and that if the people now presiding over Courts of Petty Sessions are not automatically appointed to preside over the Local Courts, the principle of judicial independence would be infringed.

4.9 Support for this argument may be sought in the fact that when magistrates in the Australian Capital Territory, Tasmania and Western Australia were taken outside the application of their local equivalent of this State’s Public Service Act no magistrate lost his or her office.⁵ There are, however, significant differences. In Western Australia, magistrates were not subject to the Public Service Act of that State in relation to appointments and discipline even before 1979, when the Act ceased to apply to them. In the Australian Capital Territory and Tasmania there were few magistrates at the time of their removal from the relevant Acts. The possibility of there being stipendiary magistrates who are unfit for the office of Magistrate is greater in New South Wales where the Bench is much larger.

4. Reasonable Expectations

4.10 We have already said that stipendiary magistrates were told by their Chairman in April 1983 that they would all be appointed as Magistrates. Apart from this, expectations also arose upon appointment as a stipendiary magistrate. These included expectations of receipt of a magisterial salary until retirement and of substantial superannuation benefits upon retirement If a stipendiary magistrate is not appointed as a Magistrate, he or she may well have to abandon at least some of these expectations. We spoke of clause 5 (3) of Schedule I to the Act in paragraphs 3.24- 3.29 and we return to it in Chapter 5. For present purposes it is sufficient to say that notwithstanding clause 5(3), a stipendiary magistrate who does not become a Magistrate will be, at least in theory, at risk of not retaining the position in the Public Service to which he or she will be appointed pursuant to clause 5(3). The submission of the Stipendiary Magistrates’ Vocational Branch emphasised the possibly disastrous financial effects on a stipendiary magistrate who is not appointed under the Local Courts Act and whose services are dispensed with under the Public Service Act.⁶

5. Speedy Implementation

4.11 The need to proclaim the commencement of the Act as quickly as possible is widely recognised. We have stated the views of the Chief justice and the Attorney General on this subject in paragraph 4.4. There is little doubt that the automatic appointment of all stipendiary magistrates as Magistrates would be the quickest way of satisfying this need. It would also remove at the earliest possible moment the uncertainty on the part of stipendiary magistrates to which we have already referred.

B. Arguments Against Automatic Appointment

1. Introduction

4.12 Many submissions to us opposed automatic appointment The New South Wales Bar Association for example, said that

“The existing magistrates are appropriate to be considered for selection and [we accept] that they will form the bulk of the first appointments, but there should be some outside appointments if possible.”⁷

Sir Adrian Solomons M.LC., on behalf of the Leader of the Opposition in the Legislative Assembly, suggested that the Attorney General should constitute a small committee to

“examine the record, qualifications and performance of all existing [stipendiary magistrates] with a view to recommending whether or not their commissions are to be renewed under ... the Local Courts Act”.

Sir Adrian added that on completion of this task it would become clear how many vacancies remained to be filled, and these could be the subject of nationwide advertisements seeking applications.⁸ The Council for Civil Liberties contended that the appointment of serving stipendiary magistrates as Magistrates under the Local Courts Act, should not be automatic, but should be made on merit.⁹ The Acting Public Solicitor proposed that if the Attorney General considered that there were existing stipendiary magistrates who were not “performing their duties competently” they should not be appointed to the new bench.¹⁰ We refer to other submissions, and to arguments advanced in them, in the course of the following discussion.

2. Changes Wrought by the Local Courts Act

4.13 The arguments in favour of automatic appointment based on demonstrated fitness and judicial independence rely heavily on the premise that the office of Magistrate in a Local Court will not be significantly different from that of a stipendiary magistrate in a Court of Petty Sessions. In our view, this basic premise is misconceived. The Local Courts Act changes many of the consequences of appointment as a Magistrate. Their general effect is that Magistrates will have higher status and greater freedom from governmental direction or supervision than is presently enjoyed by stipendiary magistrates. In total these changes are sufficiently significant for it to be appropriate to require an appraisal of each stipendiary magistrate’s suitability for appointment as a Magistrate, rather than for such appointment to be automatic.

4.14 Under the Act the position of Magistrates, as compared with that of stipendiary magistrates, is improved in the following areas:

• general status;
• security of tenure;
• susceptibility to minor disciplinary action;
• suspectibility to administration direction by Government;
• method of salary determination.

The nature of these changes has been described in earlier chapters, but summarise them briefly in the following paragraph.

4.15 First, Magistrates will be independent judicial officers, rather than public servants subordinate to a Department Head. In this respect they will be in a position similar to that of judges of the District Court and the Supreme Court. This change in status was sought, and its significance was emphasised, by the Chairman and his Deputies in submission made tot he Department prior to the enactment of the Local Courts Act. Secondly, Magistrates will hold office “during ability and good behaviour”, rather than being removable from office under the discipline and conduct provisions of the Public Service Act, 1979. The fact that the new criterion for removal is the same as for the District Court judges emphasises the significance of this change. Thirdly, Magistrates, in their capacity as Magistrates, will not, in theory or in practice, be subject to direction by a Department Head, the Public Service Board, or even the Minister. In this context, our comments in paragraph 2.36 on present practices concerning complaints about stipendiary magistrages are pertinent. Fourthly, Magistrates will not be subject to investigation, and possible discipline, by a Department Head or the Public Service Board in relation to disciplinary matters of the kind specified in section 85 of the Public Service Act, 1979. Save where there may be grounds for removal from office, the Government will no longer be empowered to require Magistrates to explain their conduct, or to issue directions as to appropriate standards of behaviour. Fifthly, Magistrates’ salaries will be determined by the independent tribunal which fixes salaries for those persons (including judges of the District Court and the Supreme Court) who are statutory officers rather than public servants. By contrast, the salaries of stipendiary magistrates are determined by the same procedures as apply to other public servants.

4.16. It is also relevant to consider here a number of consequences which are not expressly provided for in the Local Courts Act but which may flow from that Act or be recommended in our final Report. These consequences relate to

• method of appointment;
• appointment from outside the Public Service;
• jurisdiction;
• level of salaries.

We summarise them briefly in the following paragraph.

4.17 First, it is reasonably clear that the future method of appointing Magistrates will have less affinity with Public Service processes that is the case with stipendiary magistrates. This applies particularly to the composition of any advisory appointments committee which might be constituted. Secondly, we mentioned earlier the increased likelihood of Magistrates being appointed from outside of the Public Service. This change is likely, overtime, to make additional high-calibre applicants available for appointments as Magistrates, and to improve the status and manifest independence of the Bench. Thirdly, as we described in paragraph 2.12-2.14 the jurisdiction of stipendiary magistrates was increased substantially earlier this year. These increases occurred a few months after the enactment of the Local Courts Act had made it clear that the status and independence of Magistrates were to be enhanced. There is a clear Possibility that this enhancement will contribute to the increases in jurisdiction from time. Fourthly, there is a possibility that the increased responsibilities, calibre and status of Magistrates will lead to an increase in their salaries. We have mentioned earlier that the Stipendiary Magistrates’ Vocational Branch has already submitted to us that there should be such an increase.

4.18 The changes expressly effected by the Local Courts Act are sufficient in themselves to indicate that automatic appointment of all stipendiary magistrates as Magistrates is inappropriate. But the argument against automatic appointment is made even more compelling by the possible consequences flowing from the Act referred to in paragraphs 4.16-4.17.

3. The Absence in the Past of Effective Disciplinary Procedures

4.19 We said in paragraph 2.33 that no disciplinary proceedings under the Public Service Acts of 1902 and 1979 have been taken against a stipendiary magistrate in the past 30 years. There are no doubt a number of reasons for this, including the fact that the disciplinary provisions of these Acts seem to be inapt in their application to officers performing judicial duties such as stipendiary magistrates. It seems clear, however, both in New South Wales and other Australian States, that formal disciplinary proceedings against magistrates under Public Service Acts are very rare and, in practice, require very strong evidence of serious misconduct.¹¹ In our view, the fact that formal disciplinary proceedings under the Public Service Acts have not been taken against serving stipendiary magistrates does not necessarily establish that all such magistrates meet the criteria that are appropriate for appointment to a new and independent court. This in turn indicates that automatic appointment of stipendiary magistrates to the position of Magistrate under the Local Courts Act is not necessarily warranted.

4. Doubts Concerning the Suitability of Some Stipendiary Magistrates for Appointment

4.20 Neither the submissions we have received, nor any other information we have gathered during the course of our inquiry has indicated general dissatisfaction with the competence or behaviour of serving stipendiary magistrates. On the contrary, the impression we have gained from those who are familiar with the work of stipendiary magistrates is that most of their perform their difficult role competently and diligently and would meet criteria that could reasonably be imposed for appointment to the Local Court Nonetheless, it is clear that some well informed participants in and observers of, the system have serious concerns about the Suitability of some stipendiary magistrates for appointment to a new and independent court. it is not our function to determine whether these concerns are well founded or not The point is that if serious doubts are entertained by such people, careful consideration should be given to the first appointments to the Local Courts.

4.21 A number of submissions expressed these doubts in arguing against the automatic appointment of serving stipendiary magistrates to the Local Courts. The Law Society of New South Wales, in expressing its tentative and not concluded views, suggested that no present stipendiary magistrate should be automatically appointed. The Society contended that there is “only one course open to the Government”, which is to appoint serving stipendiary magistrates, unless they come within the small band “to whom the following circumstances apply”. In detailing these circumstances, the Society added that it had indications that there are many complaints about a small number of stipendiary magistrates. It said that, in the time table, it had not been able to assess the substance of the complaints and hence was not in a position identify any particular stipendiary magistrate. The Society did, however, list the following general categories of complaints received in relation to a “small number of magistrates”:

• prejudice;
• discourtesy;
• impatience;
• favour to the prosecution;
• favour to the defence; and
• lack of commonsense.¹²

4.22 The submission of the Commissioner of Police, Mr. C.R. Abbott said that experience has shown that some stipendiary magistrates have exhibited prejudices and biases which “ill behoves the administration of justice in New South Wales”. He pointed out that “[u]nsatisfactory personal conduct on the part of magistrates . . brings discredit to the administration of -justice but stated that only a “very small number of magistrates have exhibited questionable personality traits”. He suggested, among other things, that an independent selection panel should be established to examine the qualifications and skills of all prospective appointees as Magistrates.¹³

4.23 The Combined Community Legal Centres Group (N.S.W.) was particularly forthright in its comments. Its submission pointed to the wide publicity given to the Local Courts Act as providing reforms which will restore public confidence in the magistracy. It suggested that the enhancement of the powers and status of the Magistrates demands that those appointed under the new Act be selected on the basis of merit and not by the routine appointment of all those who currently hold commissions as stipendiary magistrates. The submission went on to assert that:

“[t]here are some magistrates currently sitting in Courts of Petty Sessions who are unfit to hold judicial office .... [A] broad consensus [exists] among lawyers on the identities of certain magistrates not suited to their office either because of a clear lack of legal skills or because of extreme partiality”.¹⁴

4.24 Our examination of departmental files shows that the Chairman of the Bench of Stipendiary Magistrates has expressed the view to the Minister that not all stipendiary magistrates are suitable for appointment as Magistrates under the Local Courts Act This view, which was shared by his two Deputies, was based on information derived from a variety of sources. These included barristers, solicitors, police prosecutors and other police officers, officers within Magistrates Courts Administration stipendiary magistrates, members of the public and, in some instances, direct personal knowledge. In broad terms, the information indicated that a small number of stipendiary magistrates have at least some of the following failings:

• unjudicial behaviour on the bench (for example. domineering and over-bearing conduct);
• blatant reluctance to work (for example, gross unpunctuality, short working hours and unnecessary adjournments) or to do particular kinds of work;
• undue haste in disposing of cases;
• erratic approaches to sentencing;
• incompetence.

The views of the Chairman and his Deputies have been known to stipendiary magistrates, and to the public, for some time. They were referred to In an editorial in the Sydney Morning Herald of 8 August 1983.

4.25 We stress again that we have not seen it as part of our function to assess whether the doubts expressed, In Submissions and elsewhere as to the availability of some stipendiary magistrates for appointment as Magistrates are well-founded. The point is that the doubts exist in the minds of some serious. well-informed and responsible people. The doubts cannot be resolved if all currently serving stipendiary magistrates are automatically appointed to the new Bench.

5. The Intentions of Parliament

4.26 We referred in paragraph 4.8 to the fact that the Supreme Court Act 1970, and the District Court Act, made it clear that all serving judges would automatically accede to office under the new Acts. The Local Courts Act, however, makes it equally clear that some stipendiary magistrates may not accede to the office of Magistrate. Clause 5(3) of Schedule 1 to the Act provides expressly for those who do not. It is possible that this provision was inserted because it was contemplated that some stipendiary magistrates may choose not to apply for appointment to the new office. It is difficult. however, to see why a stipendiary, magistrate would decline automatic appointment. if offered. The language of clause 5(1) is clearly not confined to such a case. Accordingly, we take the view that the provisions of the Local Courts Act show that Parliament did not assume that all stipendiary magistrates would be appointed automatically to the new Bench.

6. Reasonable Expectations

4.27 We noted in paragraphs 3.25-3.28 that there is a risk that a stipendiary magistrate who does not accede to the office of Magistrate will not retain the position within the Public Service to which he or she must be appointed pursuant to clause 5(3) of schedule 1 to the Local Courts Act. It may well be that the risk is more theoretical than real, since in practice senior public servants who have been displaced from their positions (otherwise than for misconduct) have had their employment and salary maintained within the Public Service. The same result may reasonably be expected to flow from clause 5(3). Assuming, however, that the risk is a significant one, we think that this would not be a sufficient ground to warrant automatic appointment of serving stipendiary magistrates as Magistrates. Obviously the absence of financial security would be a most serious matter for any stipendiary magistrate not appointed. Nonetheless, it would be a matter of weighing up the public importance of securing a high quality bench of Magistrates against the potential hardship to individual stipendiary magistrates who are not able to meet the criteria for appointment. The proper administration of justice may be of such significance to society that it should prevail over individual hardship. Similarly, it may be that the possible “loss of face” which would follow the event of a stipendiary magistrate not being appointed a Magistrate is not a sufficient justification for automatically appointing all stipendiary magistrates. If a person cannot satisfy the objective selection criteria to which we have referred, it may very well be that his or her private hurt cannot match the public detriment that is likely to follow his or her appointment. It is to be noted that stipendiary magistrates themselves voted for a change in their status at a time when they had no undertaking that as individuals they would attain the new status.

4.28 Nonetheless it is clear that stipendiary magistrates have an expectation that they will enjoy financial security within the Public Service. It is equally clear that it would be a serious matter to disturb this expectation We do not think that the most appropriate solution to the problem is the automatic appointment of all stipendiary magistrates as Magistrates. Rather, the Local Courts Act should be amended, or other action taken, to ensure that any stipendiary magistrate not appointed as a Magistrate will enjoy continuity of employment within the Public Service and will not be at risk of suffering a diminution of salary, except in cases of misconduct. We return to this matter later.

7. Implementation of the Act

4.29 We see no merit in an argument that the automatic appointment of all stipendiary magistrates as Magistrates is justified by a need to proclaim the Local Courts Act as quickly as possible. While expedition is clearly desirable, the quality of the Bench of Magistrates is a matter of considerable importance for the administration of justice in New South Wales. As the report of the Street Royal Commission says, the selection of the personnel of the magistracy must be “carefully and thoroughly done”.¹⁵ The procedures adopted must minimise delays and avoid disruption to the work of the magistracy. This does not however, require the conclusion that stipendiary magistrates should be appointed automatically as Magistrates under the Local Courts Act.

C. Conclusion

4.30 We have given careful consideration to the arguments in favour of automatic appointment as Magistrates of serving stipendiary magistrates. We reject these arguments for a number of reasons.

• The Local Courts Act effects substantive changes in relation to Magistrates (enhanced status, security of tenure, greater independence, and a new method of salary determination). These changes make it appropriate to apply criteria for appointment more stringent than those which might determine whether disciplinary proceedings are justified against particular stipendiary magistrates. Thus, the fact that disciplinary proceedings have not been brought against serving stipendiary magistrates, does not necessarily establish that all such magistrates are suitable for appointment under the Local Courts Act, 1982.
• There are serious doubts held on the part of well-informed observers, reflected in submissions to us, as to whether all stipendiary magistrates are suitable for appointment as Magistrates.
• The reasonable expectations of serving stipendiary magistrates that they should enjoy financial security can be met by ensuring that they are entitled to continuity of service and of salary within the Public Service.
• The Local Courts Act by its terms, recognises that not all serving stipendiary magistrates will necessarily be appointed as Magistrates.
• The need for speedy implementation of the Local Courts Act is not so great as to warrant automatic appointment of all serving stipendiary magistrates.

Accordingly, we recommend that serving stipendiary magistrates should not be appointed automatically as Magistrates under the Local Courts Act, 1982.

III. THE OPTIONS

4.31 If stipendiary magistrates are not to be appointed automatically as Magistrates, it is necessary to decide which approach should be taken to the first appointments under the Local Courts Act There are, no doubt, many possible approaches, but we have identified three main options. As indicated in paragraph 4.5, these are:

• to appoint all stipendiary magistrates except those, if any, who are removed in consequence of disciplinary proceedings, and then fill any vacancies by open selection from all qualified applicants;
• to open all Magistrates’ positions to applications from all qualified persons, so that stipendiary magistrates would compete on an equal footing with other applicants;
• to invite, in the first instance, only stipendiary magistrates to apply for appointment and to consider their applications before inviting applications from all qualified persons for any remaining vacancies.

We consider each of these options.

A. Institution of Disciplinary Proceedings

4.32 One approach would be to appoint as Magistrates all stipendiary magistrates except those, if any, who are removed from office in consequence of disciplinary action. The submission from the Stipendiary Magistrates’ Vocational Branch is to the effect that if its preferred option of automatic appointment is not adopted, then one of two possible courses of action should be taken. If a particular stipendiary magistrate is considered to be unsuitable for appointment, proceedings for his or her dismissal should be immediately commenced under the provisions of the Public Service Act, 1979. Alternatively, if it is considered that these proceedings would unreasonably delay the commencement of the Local Courts Act the stipendiary magistrate should be appointed a Magistrate and action for his or her removal should then be taken under section 18(2) (a) of that Act We consider this suggestion in the following paragraphs. For the purposes of discussion we do not take into account any possibility that action under section 18(2) (a) should not, or could not, be taken in respect of incompetence or misbehaviour occurring before the commencement of the new Act.

1. Arguments for this Approach

4.33 Stipendiary magistrates now have the expectation that subject only to the discipline and conduct provisions of the Public Service Act 1979, they will if they live to the age of 60 years, hold office until they attain that age. Because these discipline and conduct provisions are part of their conditions of service, they cannot complain if the provisions are invoked against them. But, it is argued, they can complain if the security of their tenure of office, and their judicial independence, are attacked by means other than those provided for in the relevant statute, whether the Public Service Act, 1979, or the Local Courts Act It follows, on this argument that the only basis for not appointing stipendiary magistrates as Magistrates will be that they are found unsuited for office as a consequence of disciplinary proceedings being taken against them pursuant to the relevant statute.

4.34 A further argument is that formal disciplinary proceedings, at least those taken under the Public Service Act 1979, are subject to procedural and other safeguards designed to ensure that the person against whom the proceedings are taken is not denied natural justice. These proceedings would provide stipendiary magistrates with a full opportunity to hear and answer any allegations which may be made against them. A stipendiary magistrate whose appointment as a Magistrate is in doubt should not, it is argued, be denied these safeguards. Any attempt to do so would be a denial of natural justice itself.

2. Analysis

4.35 One argument against this approach is, as stated in paragraph 4.19, that the discipline and conduct provisions of the Public Service Act 1979, are generally inappropriate for officers performing judicial duties. Even if this difficulty could be overcome (by for example, utilising the removal provisions of section 18(2)(a) of the Local Courts Act) there is still in our view, an overwhelming objection to the suggestion that disciplinary proceedings should be the only means of determining whether a stipendiary magistrate is unsuited for appointment as a Magistrate under the Local Courts Act. The objection is, as discussed in paragraph 4.13, that the Act will effect a substantial change to the status and position of the persons who will preside over Local Courts as distinct from those who now preside over Courts of Petty Sessions. This change necessitates the formulation of criteria and procedures for the appointment of Magistrates which will ensure that the new Bench will be of the highest quality. The criteria for appointment should set standards of competence and general suitability for office that are higher than those that would be relevant in proceedings for removal from office. Thus, in our view, the crucial question is whether serving stipendiary magistrates meet reasonable criteria for appointment rather than whether they have displayed such incompetence or misbehaviour as to justify the taking of disciplinary action against them. The appropriate way to answer this question is by a selection process, adapted to the special circumstances of the particular case presented by the new Act, not by reliance on the institution or non- institution, of disciplinary proceedings designed in effect to punish for past misconduct.

4.36 We have reached this conclusion as a matter of principle. There are, however, other considerations suggesting the same result. First, given that doubts have been expressed about the suitability of some stipendiary magistrates for appointment, the choice would be between initiating disciplinary proceedings against a number of stipendiary magistrates or, in accordance with past practice, regarding such proceedings as available only in the most extreme cases. The former course of action would not only be a dramatic break with the past, but would involve prolonged proceedings that would almost certainly bring the magistracy into disrepute. The latter approach would simply not address a problem that is widely perceived to exist Secondly, stipendiary magistrates contemplating a disciplinary inquiry would face a dilemma. If the outcome of the inquiry was that they remained in office, their good name and authority would have been adversely affected because, even if the inquiry was held in private, word of it would very soon spread among their peer group and those associated with that group. On the other hand, if the outcome was that they were to be removed from office, they would lose whatever benefits they maybe entitled to under clause 5(3) of Schedule 1 to the Act.

4.37 We are conscious that the failure to appoint any stipendiary magistrate as a Magistrate may have a significant impact on that person. But for reasons we have given, we consider that these personal considerations do not outweigh the interests of the public in the administration of justice. Nevertheless, as stated earlier, we think that the proper expectations held by stipendiary magistrates of continuity of service and salary within the Public Service should be preserved and placed beyond doubt.

4.38 Accordingly we do not recommend that all stipendiary magistrates should be appointed as Magistrates except those who are removed from office in consequence of disciplinary proceedings.

B. Open Selection

4.39 A second approach is to regard all Magistrates’ positions under the Local Courts Act as open to competition from all qualified persons without any preference being accorded to any particular group of applicants. In other words, all barristers and solicitors throughout Australia, whether in the Public Service or not and whether or not serving stipendiary magistrates, would be eligible applicants, Selection would be by Cabinet on the recommendation of the Minister and the Minister might, or might not seek the assistance of an advisory committee. There would be no formal presumption of preference in favour of stipendiary magistrates, but demonstrated ability and experience in that office could reasonably be expected to carry considerable weight.

1. Arguments for Open Selection

4.40 The main arguments for open selection can be stated shortly. They include the following.

• Open selection is clearly the best way of obtaining the best qualified Magistrates, with the greatest range and depth of judicial qualities.
• As stated earlier, Magistrates will have enhanced independence, security of tenure, and status in comparison with stipendiary magistrates. They will also have a much wider jurisdiction than most stipendiary magistrates had at the time-of their respective appointments (bearing in mind that all but 39 of the present Bench of 105 were appointed more than ten years ago). It is therefore appropriate to have open selection in order to obtain the best possible candidates for the new office. It would be wrong for stipendiary magistrates to be appointed automatically to, or to be given special preference for, an office that is significantly different from that which they now hold. There is, moreover, every likelihood that the jurisdiction of Magistrates will continue to be enlarged from time to time.
• Open selection would enhance public confidence in the magistracy as a carefully selected and high quality group of judicial officers. It would increase the likelihood of the new Act being, and being seen to be, the beginning of a new era for the magistracy and those who appear before it.
• By comparison with the use of disciplinary inquiries, this option would avoid any necessity to inquire publicly into the conduct of particular stipendiary magistrates, and would reduce the damage to the reputation of those not appointed as Magistrates.

2. Analysis

4.41 The case in favour of open selection of the first Magistrates is powerful as it would lead, in theory, to the establishment of the most highly qualified Bench and thus improve the administration of justice in New South Wales. There are, however, a number of reasons for not adopting this approach despite its apparent attractions.

4.42 First, if there were many applications for the position of Magistrate it may be difficult to give thorough consideration to them all. This difficulty would be compounded by the need to proclaim the commencement of the Local Courts Act as soon as possible. One possible consequence is that, so far as serving stipendiary magistrates are concerned, undue emphasis may be given to “paper” qualifications, or to performance in relatively brief interviews, rather than to a careful examination of past performance. Some stipendiary magistrates who have performed competently and sensitively, yet have modest qualifications, may be overlooked while other applicants, whether from the magistracy or elsewhere, may be preferred simply on the basis of apparently superior paper qualifications.

4.43 Secondly, if there were many applications, a thorough selection process may be too lengthy to permit the involvement of the most appropriate people. It might preclude, for example, the active participation of persons at the highest levels of the judiciary. Yet such involvement may be important in order to provide a selection process which has the confidence of the public and the magistracy, and reflects the importance of the appointments.

4.44 Thirdly, an open selection process creates the possibility that a substantial proportion of serving stipendiary magistrates would not be appointed as Magistrates. If this occurred, great transitional difficulties could arise from a large influx of new Magistrates, many of whom may have no judicial experience. Moreover, assuming that any stipendiary magistrates who are not appointed retain continuity of service and salary within the Public Service,¹⁶ the cost and inconvenience to the State could be great.

4.45 Fourthly, while the expectations of stipendiary magistrates should not stand in the way of measures needed to improve the quality of the administration of justice, those expectations should be given proper weight. Open selection would lead to conflict with the expectations of stipendiary magistrates; whether based on statements made to them or otherwise. This may create resentment and perhaps could affect the work performed by stipendiary magistrates while the selection process takes place. Moreover, it would also be desirable for the selection process to reassure stipendiary magistrates that demonstrated ability and experience in that office will be given due weight.

4.46 We conclude that despite its theoretical attractions, open selection should not be used for the first appointments of Magistrates under the Local Courts Act.

C. Phased Selection

4.47 On a “phased selection’ approach, the following procedure would be adopted:

• applications for appointment as Magistrates under the Local Courts Act would first be invited from serving stipendiary magistrates;
• applications would be assessed by a committee, whose task would be to advise the Minister as to which of the applicants meet criteria which can fairly be expected of appointees to a newly independent court;
• any vacancies in the magistracy arising out of this process would be filled by open selection with recommendations being made by the same committee, or substantially the same committee;
• any stipendiary magistrate not appointed as a Magistrate would be entitled to continuity of service and salary, within the Public Service.

Phased selection would give some preference to serving stipendiary magistrates. The selection procedure would involve assessing whether stipendiary magistrates meet specified criteria. It would not involve the imposition of a penalty for past misconduct.

1. Arguments for Phased Selection

4.48 The arguments in favour of phased selection of Magistrates are implicit in the reasoning of this Interim Report. They include the following:

• Phased selection recognises that the status and position of Magistrates under the Local Courts Act are different from those of stipendiary magistrates, and that it would not be appropriate automatically to appoint all stipendiary magistrates or to appoint all except those against whom disciplinary proceedings might be instituted in respect of past misconduct or incompetence.
• By concentrating in the first instance on applications from serving stipendiary magistrates, phased selection would permit those applications to receive full and careful consideration, yet enable the selection process to proceed with reasonable speed. It would reduce the task of competitive selection to what are likely to be manageable proportions, and thus mean that a high-level selection committee, which would command the confidence of the public and the magistracy, could be established to recommend initial appointments.
• This approach should reassure stipendiary magistrates that their qualifications and experience will be given proper weight by any selection committee.
• Phased selection avoids the excessive expenditure of time and effort which could result from an open selection process and which would delay unacceptably the implementation of the Local Courts Act.
• Phased selection would also avoid the difficulties which are inherent in disciplinary proceedings, difficulties to which we referred in paragraphs 4.35 and 4.36.

2. Analysis

4.49 Arguments against the phased selection approach were considered when earlier in this chapter we discussed other possible approaches. One is that phased selection is less likely than open selection to result in the best appointments to the magistracy. We considered this contention in paragraphs 4.41-4.46 where we examined the suggestion that all initial appointments should be made by open selection We concluded there that though open selection had attractions in theory, there would be significant disadvantages in practice. These included the difficulty of giving careful consideration to all applications, the magnitude of the task the transitional disruptions which might be caused, and the fact that open selection would conflict with expectations held by serving stipendiary magistrates.

4.50 A second argument is that any stipendiary magistrate whose application for appointment as a Magistrate is unsuccessful may feet that he or she has been denied the full opportunity to present his or her case which would be available in disciplinary proceedings. In paragraphs 4.35-4.36, we gave our reasons for concluding that disciplinary proceedings should not be employed as the means of determining whether any stipendiary magistrate is unsuitable for appointment under the Local Courts Act Among other difficulties, such an approach would give insufficient recognition to the changes effected by the Act.

4.51 It is desirable that stipendiary magistrates should have an opportunity to respond to any doubts a selection committee may have about their suitability for appointment as Magistrates. In our view, however, concerns of this kind can be met through the establishment of an appropriate appointments committee and the adoption by that committee of fair selection procedures. We turn to these matters in the next chapter.

IV. CONCLUSION

4.52 We recommend that the first appointment of Magistrates under the Local Courts Act, 1982, should be undertaken by means of the process we describe as “phased selection”. Under this process

• applications for appointment would first be invited from all serving stipendiary magistrates;
• the applications would be assessed by an appointments committee which would advise the Minister as to the applicants who are recommended for appointment;
• any vacancies arising after consideration of the applications from stipendiary magistrates would be filled, after open advertisement, by the Minister on the recommendation of the committee, or substantially the same committee.

Phased selection would pay due regard to the changes effected by the Local Courts Act. It would assist in maintaining public confidence in the judicial system by ensuring that any stipendiary magistrate appointed as a Magistrate would have been the subject of a recommendation made by a highly qualified appointments committee. At the same time, it would accord due weight to the expectations and experience of stipendiary magistrates. It would also provide a selection process that is both thorough and expeditious.

4.53 Our preference for phased selection requires attention to be given to the criteria for appointment the composition and powers of the appointments committee, and the procedures to be followed by the committee. It is also important to make just provision for the stipendiary magistrates, if any, who are not appointed Magistrates. We examine these issues in Chapter 5.¹⁷

FOOTNOTES

1. Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against KE. Humphreys (July 1983), p.98.

2. Ibid.

3. Submission No.17, p.1

4. The submission is qualified in its application to Mr. K W Jones, S.M.

5. See Appendix A to this Interim Report.

6, Submission No.17, pp.22-23.

7. Submission No.42.

8. Submission No.7.

9. Submission No.50.

10. Submission No.51.

11. The point can be illustrated by the thorough consideration given in 1978 to the possibility of taking disciplinary proceedings against the then Chairman of the Bench of Stipendiary Magistrates. In the event proceedings were not taken. See Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983), Appendix 10.

12. Submission No.49.

13. Submission No.38.

14. Submission No.43.

15. See note 1 above.

16. Whether pursuant to clause 5(3) of Schedule 1 to the Local Courts Act, 1982, or to some other provisions resulting from our recommendation.

17. We note that clause 3 of Schedule 9 to the justices (Local Courts) Amendment Act, 1982, is directed at certain transitional problems which could arise if a stipendiary magistrate is not appointed a Magistrate and, on the appointed day, is “part-heard” in particular proceedings. We have not examined this provision with a view to determining whether it covers all possible contingencies.