I. THE SCOPE OF THIS CHAPTER

5.1 We concluded in Chapter 4 that what we call a phased selection approach should be adopted for the selection of the persons to be first appointed as Magistrates under the Local Courts Act 1982. In this chapter, we consider the selection process itself. We do so under the following heads.

• the criteria for appointment;
• the appointments committee;
• the appointments procedure;
• the filling of any consequent vacancies in the magistracy.

We then consider some related matters, namely

• the need, if any, for medical reports in respect of successful applicants;
• the position of any stipendiary magistrate who is not appointed a Magistrate.

We conclude the chapter by directing some attention to the office of Chief Magistrate.

II. THE SELECTION PROCESS

A. The Criteria for Appointment

5.2 We are not concerned here with qualifications for appointment They are stated in section 12(2) of the Local Courts Act and, for the purposes of this Interim Report we regard them as settled. If a person is, or is eligible to be appointed as, a solicitor, a barrister, or a barrister and solicitor anywhere in Australia, he or she is qualified for appointment as a Magistrate. The fact that a person is qualified is, of course, no indication that he or she is suitable for appointment.

5.3 Writings on the merits of the criteria used in the selection of magistrates and judges are not extensive. We have, however, had regard to some writings of this kind.¹ In view of the enlarged jurisdiction exercised by stipendiary magistrates, and the enhanced status and responsibilities that Magistrates will have under the Act, we see the criteria which are relevant to the selection of judges as being generally applicable to the selection of Magistrates, although some adaptation may be required.

5.4 We set out in paragraph 2.22 the major matters to which regard is often had when appointments as stipendiary magistrates are being considered. This list covers in a general way most, although not all of the qualities sought in the holders of judicial office. We do not repeat the list here. We simply note that the relevant criteria fall broadly into several categories, which are not necessarily mutually exclusive.

• legal skills, including knowledge of the substantive law and relevant procedural rules and the ability to identify, analyse and reach conclusions on legal issues;
• judicial qualities, including the capacity to assess evidence critically and carefully, to make decisions without prejudice or bias and to express reasoning and conclusions clearly and persuasively,
• personal characteristics, including “moral courage” (especially imperviousness to corrupting influences), dependability, commonsense, diligence, and sensitivity to the difficulties and needs of other people; personal attributes to which the Chief justice of New South Wales has elsewhere attached importance are “humanity, humility and a liberated intellect”;²
• breadth of knowledge and experience, including an understanding of non-legal disciplines insofar as they relate to sentencing and other judicial responsibilities, and professional experience with problems of the kind that come before the courts;
• reputation for honesty and integrity in both professional work and personal life.

In the report of the Street Royal Commission the Chief Justice expressed the requirements of judicial office as follows:

"uncompromised and uncompromisable integrity in the dispassionate determination of disputes within the disciplined guidelines of the body of admissible evidence and established rules of law. Calm disengagement from external or collateral considerations, and independent detachment from extraneous influences, are essential if justice is to be administered with the fair impartiality upon which the integrity of our judicial system rest”.³

5.5 It is interesting to compare the criteria formulated by Magistrates Courts Administration with a list compiled in the United States after 144 judges had been asked which of 23 judicial qualities were seen by them to be the most useful.⁴ The six most important qualities were said to be:

• moral courage;
• decisiveness;
• reputation for fairness and uprightness;
• patience;
• good health physical and mental;
• consideration for others.

Of these six qualities two, decisiveness and patience (which are not necessarily compatible), are not expressly referred to in the list formulated by Magistrates Courts Administration. This suggests that it may not be easy to reach agreement on the precise attributes required of judicial officers, or at least the relative importance of the various attributes.

5.6 Even assuming agreement can be reached, it is often exceedingly difficult to ascertain whether individual applicants possess, or will retain those qualities. One writer has commented perceptively on the United States survey referred to in the previous paragraphs

“A striking feature of these highest ranking attributes is that they tend to focus upon the personality or person of the candidate - what he is rather than what he has done, his innate or intrinsic qualities rather than his external attainments. They are more concerned with temperament, disposition character, and attitude than with background, training, or formal achievement Except for good health they tend to be subjective and difficult to recognize and measure. Furthermore, they are qualities that do not relate uniquely to the law, its study or its practice, and are not peculiar to lawyers or judges. They do not clearly differentiate those who are best equipped to be trial judges from other persons of virtue ...

The difficulty is not in accepting the importance of the highly favoured human attributes, but in determining which lawyers have them and to what extent. Because these qualities are largely subjective, difficult to discern and, almost impossible to measure, the problem is a vexing one.”⁵

5.7 We do not think it is feasible, at least without considerable further work and perhaps not even them to specify a definitive set of criteria to govern the initial selection of Magistrates. In the end, there can be no substitute for the exercise of judgment by the responsible authority. We think it is enough to recommend that the appointments committee, to which we refer in the next section, should take into account the matters referred to in paragraphs 5.4 and 5.5, under the following general headings:

• legal skills;
• judicial qualities;
• appropriate personal characteristics;
• breadth of knowledge and experience; and reputation for honesty and integrity.

The relative weight to be attached to each of these attributes should be for the committee to determine.

5.8 On the phased selection approach recommended in Chapter 4, the first task of the appointments committee will be to assess applications from serving stipendiary magistrates for appointment as Magistrates under the Act. These applicants will not be competing for priority among themselves, since the positions available will equal or exceed the number of applicants. Rather the appointments committee will be concerned to determine whether each applicant meets the standards that can reasonably be expected of initial appointees. We have said that these standards should be more stringent than the minimum level of competence and behaviour that has sufficed in the past to avoid disciplinary action. For example, it maybe that the decisions of a stipendiary magistrate consistently reveal important deficiencies in his or her understanding of the law, perhaps in an area added to the jurisdiction of Courts of Petty Sessions after that stipendiary magistrate was appointed. These deficiencies may not be so gross as to justify disciplinary action on the ground of incompetence. Yet they may be sufficiently serious to indicate clearly that the interests of justice would be served by not appointing the stipendiary magistrate as a Magistrate under the Act.

5.9 We have said that, if there are any vacancies in Magistrates positions after the applications from stipendiary magistrates have been considered, the vacancies should be filled by open selection. Applicants responding to open advertisement will be competing among themselves for a limited number of vacancies. It will be necessary for the appointments committee not only to determine whether applicants meet the selection criteria, but to rank them in order of priority. Thus in the case of these appointments the selection criteria will play a somewhat different role than in relation to applications from stipendiary magistrates.

B. The Appointments Committee

1. Responsibility for Making Appointments

5.10 We explained in paragraphs 2.17-2.20 the procedure governing the appointment of stipendiary magistrates under the justices Act, 1902. In practice applications from officers serving within Magistrates Courts Administration are assessed by a selection committee, which draws up an eligibility list It is, however, the Minister’s responsibility to make a recommendation to Cabinet, the formal appointment being made by the Governor following a resolution of Cabinet and the Executive Council. The Stipendiary Magistrates’ Vocational Branch submitted that, if it is proposed that stipendiary magistrates should not automatically be appointed as Magistrates, the question of the appointment should be determined by a tribunal.⁶ Section 12 of the Local Courts Act expressly provides, however, that appointments as Magistrates shall be made by the Governor. We doubt that our terms of reference allow us to question this provision but, in any event, we would not wish to do so in the case of the first appointments as Magistrates. The long established practice. in New South Wales, other Australian jurisdictions, and the United Kingdom is that Government determines who shall be appointed to judicial office. The Governor, acting on the advice of his Ministers, makes the formal appointment This view has political support.⁷ Thus we think that the responsibility for making the first appointments should remain with the Minister and the Government of the day.

2. Establishment of an Appointments Committee

5.11 A number of submissions suggested that in the case of the first appointments to the magistracy, the Minister should have the assistance of a suitably constituted appointments committee. We agree that the Minister should receive thorough and impartial advice from a committee of unquestioned eminence, whose members will give due weight to the importance of the position of Magistrate and of fairness to applicants for the position In reaching the conclusion that an appointments committee should be established, we have had regard to the unusual circumstances surrounding the deferred commencement of the Local Courts Act and the difficult and delicate task involved in making more than 100 initial appointments under that Act. A stipendiary magistrate who is not appointed as a Magistrate must have no reasonable grounds for believing that he or she has not been dealt with fairly or that the decision was made on political grounds. Accordingly, we recommend that an appointments committee be constituted to advise the Minister in relation to the first appointments as Magistrates under the Local Courts Act.

5.12 We wish to emphasise that this recommendation does not assume that a formal appointments committee should be established in relation to future appointments as Magistrates. There is a substantial literature on judicial commissions and similar bodies, which will be explored in Phase II of our reference. A number of difficult and potentially far-reaching issues will need to be examined in depth. We repeat that the need for an appointments committee in this case arises from the particular circumstances in which the first appointments as Magistrates must be made.

3. Composition of the Committee

5.13 The submissions vary in their suggestions about the composition of an appointments committee. Among those who supported the idea of such a committee, there was general agreement that, if possible, the Chief Justice and the Chief Judge of the District Court should be members. Other suggestions included the Chairman of the Bench of Stipendiary Magistrates, the Under Secretary of the Department of the Attorney General and of justice, the Director of Magistrates Courts Administration, and representatives of the Bar Association and the Law Society.

5.14 We have been informed by the Attorney General that he has approached the Chief Justice and the Chief Judge of the District Court and each has indicated that he is willing to serve on an appointments committee if one is to be established. We think it is essential both from the viewpoint of public confidence in the magistracy and the viewpoint of stipendiary magistrates themselves, that this willingness to serve be translated into an appointment to the committee. The public interest is served if the first appointments to the Local Courts are the subject of recommendations made by persons of great eminence and experience. The interests of stipendiary magistrates are also served by the same considerations. Indeed, it is a public recognition of the importance of the office of Magistrate that the Chief Justice and the Chief Judge are willing to participate in the selection process. We recommend that the Chief justice and the Chief judge be appointed to the committee we have proposed, and that the Chief justice be Chairman of that committee.

5.15 The Stipendiary Magistrates’ Vocational Branch suggested in its first submission to us that the Chairman of the Bench should sit on the committee proposed by the Branch.⁸ In its second submission, the Branch contended that the Chairman should not be a member of the committee.⁹ The reason given was that the Chairman might “be required as a witness for the Magistrate or the Minister” and that he could not really be regarded as completely independent and impartial.¹⁰ It may be that this comment was based on the assumption, which we do not share, that the committee would operate as a formal tribunal hearing of allegations of misconduct against stipendiary magistrates. Clearly the Chairman knows his magistrates well and his considered views ought to be available to the committee. But as we mentioned in paragraph 4.24, the Chairman has expressed the view to the Minister that not all stipendiary magistrates are suitable or appointment as Magistrates under the Local Courts Act In the circumstances, we think it might be seen as unfair if the Chairman having expressed these views, were to be appointed a member of the committee responsible for making recommendations to the Minister about particular stipendiary magistrates. The Chairman has told us that he understands and willingly accepts this position. In saying that the Chairman should not sit on the committee we have proposed, we do not mean that the Chief Magistrate under the Local Courts Act should be precluded from sitting on a permanent committee, should one be established, to advise the Minister on later appointments as Magistrates.

5.16 We have given careful consideration to whether the Under Secretary of the Department, the Director of Magistrates Courts Administration and representatives of the Bar Association and Law Society should be members of the appointments committee. On balance we think not. Each of these persons and organisations has a close involvement with and deep knowledge of, the stipendiary magistrates now serving in New South Wales. Clearly their views, if sought, should be available to the committee. A difficulty could arise, however, if, for example, the views of the Law Society or the Department of the Attorney General and of justice were sought and representatives of each body were on the committee. It might be thought difficult for the committee objectively to evaluate these views, if a representative of the body putting them forward is also a member of the appointments committee. There is an additional consideration which affects Departmental representatives. It could be seen as inappropriate for Departmental officers to serve on the appointments committee, given that a major objective of the Local Courts Act is to secure the independence of the magistracy from the Department. The same consideration would apply to any member of the committee drawn from the Public Service Board of New South Wales.

5.17 We have formed the view, however, that the appointments committee should include two members other than the Chief justice and the Chief Judge. One should be the Solicitor General who is the senior non-political law officer of the Crowm. The holder of the office is not subject to the Public Service Act, 1979, and has no formal connections with Magistrates Courts Administration or the magistracy and is clearly in a position to exercise an impartial judgment. The fourth member should be a person who has had the opportunity to observe the magistracy closely, but whose links with it are no longer close. A person fitting this description is a former Deputy Under Secretary of the Department of the Attorney General and of Justice, now the Electoral Commissioner for New South Wales, Mr. A.L Barnett Thus, we recommend that the appointments committee should include the Solicitor General and one other person who could be Mr. A.L. Barnett. Since on our proposals there would be four members of the committee, we recommend that, in the event of an equal division, the Chairman should have a casting vote.

5.18 We have said that the ultimate responsibility for making the initial appointments should rest with the Minister and the Government. Thus the role of the appointments committee would be to provide advice on those appointments. Nonetheless, we would expect, unless there are very exceptional circumstances, that the advice of the appointments committee would be followed. We are at liberty to add that both the Chief justice and the Chief Judge have indicated that their willingness to participate as members of the committee is based upon this expectation.

4. Privilege

5.19 The task facing the committee will require it to obtain information and advice from a variety of bodies and individuals. We think it is important that any person or body furnishing information to the committee should have absolute privilege under the law of defamation. Similarly, the committee itself should have absolute privilege in respect of any republication of that information. We formed the tentative view that this protection could be afforded under sections 18 and 19 of the Defamation Act, 1974, if the committee was appointed under the authority of the Governor. Those sections provide for a defence of absolute privilege for a publication in the course of an inquiry or in an official report of an inquiry made under the authority of the Governor. This view was confirmed in an advice to us by the State Crown Solicitor, Mr. H. K. Roberts. Accordingly, we recommend that the appointments committee should be constituted by the Governor in such a way that the provisions of sections 18 and 19 of the Defamation Act, 1974, apply to the inquiries and reports of the committee.

C. The Appointments Procedures

1. Background

5.20 Given the eminence and expertise of the persons we have proposed for membership of the appointments committee, it is unnecessary and indeed inappropriate for us to specify in detail the procedures they should follow. We have complete confidence that the committee will settle upon procedures that are fair to applicants, yet meet the need to settle the first appointments of Magistrates as soon as possible. We do think it worthwhile, however, to indicate in a general way what we see as some of the central issues.

5.21 Our assessment of the position is influenced by two important factors. First for reasons we have explained, we do not see the appointments committee as being involved in a disciplinary inquiry or hearing, to which elaborate procedural safeguards might be appropriate.¹¹ It is undertaking a selection process which should be characterised by informality and confidentiality. Secondly. We recommend in paragraph 5.30 that the expectations of stipendiary magistrates should be specifically protected, in that their employment and salary within the Public Service should not be prejudiced if they fall to gain appointment as Magistrates. If this recommendation is accepted, any stipendiary magistrate whose application is unsuccessful not suffer financial detriment or loss of security of employment compared with his or her current position.

2. Selection from Stipendiary Magistrates

5.22 In our view, the first step in the selection process should be for the Minister to invite stipendiary magistrates to apply for appointment as Magistrates. There are two reasons for suggesting this approach. First, some stipendiary magistrates may prefer not to apply, and so preserve their continuity of employment and salary within the Public Service. Secondly, the applications can be expected to provide the appointments committee with information concerning the applicants’ qualifications, experience and other attributes which in the light of the criteria identified earlier, may be especially relevant. We do not suggest any particular form of application-, doubtless the committee will form its own views.

5.23 The committee should be authorised to undertake such consultations as it thinks fit. We suggest (without specifically recommending) that members of the committee should consult with the Chief Magistrate and any Deputy Chief Magistrates, and with the Under Secretary of the Department of the Attorney General and of Justice. In making this suggestion we assume that the Chief Magistrate and Deputy Chief Magistrates will be appointed before the committee begins its deliberations. We return to this question later in this chapter. In addition, we think that it would be appropriate to solicit the views of the Presidents of the Law Society and the Bar Association. There may be other bodies who should be consulted. The committee should have access to departmental files to the extent that they are relevant to the applications. We have referred to the question of privilege in paragraph 5.19.

5.24 The appointments committee would of course, have power to interview any applicant, and, if necessary, on more than one occasion. We would expect that if the committee were doubtful as to whether a particular applicant warranted appointment, he or she would be interviewed before a final recommendation was made. In such a case, we would also expect that the committee would indicate to the applicant ways in which he or she may not meet the criteria for appointment and give that applicant an appropriate opportunity of discussing the matter with the committee. We repeat that interviews of this kind would not be in the nature of hearings, and should take such form as the committee determines. The report itself should be made to the Governor and might be very short, perhaps simply recommending that the persons named in an attached list should be appointed as Magistrates.

3. Open Selection

5.25 After the appointments committee has considered applications from stipendiary magistrates, there may be vacancies on the Local Courts bench. These will need to be filled expeditiously if the commencement of the Local Courts Act is not to be delayed unduly. Vacancies may arise because

• at the time the committee commences its work, not all stipendiary magistrates’ positions are filled,
• some stipendiary magistrates do not apply for appointment as Magistrates: or
• some stipendiary magistrates are unsuccessful in their applications.

We recommend that the committee should be empowered to make recommendations concerning appointments to any such vacancies and that this be done by open selection of the kind discussed in paragraphs 4.39-4.53. It may become apparent at an early stage of the committee s work that there will be vacancies to be filled by open selection if this is the case, advertisements could be placed before the committee has completed its consideration of applications from stipendiary magistrates.

5.26 We suggested in paragraph 5.15 that the Chairman of the Bench of Stipendiary Magistrates should not be a member of the appointments committee established to consider applications from stipendiary magistrates. The same considerations do not apply to the committee’s consideration of applications made as part of an open selection process. We recommend that the Chief Magistrate join the committee at the second stage of its work. This recommendation applies whether or not the Chairman is appointed as the first Chief Magistrate.

III. RELATED MATTERS

A. Medical Reports

5.27 Persons appointed as Magistrates will hold a statutory office. The general practice in New South Wales is that all persons proposed to be appointed, or reappointed, to statutory office must undergo a medical examination Some stipendiary magistrates may not pass such an examination. If they are otherwise suitable for appointment as Magistrates should they be denied appointment on this ground? Almost certainly they will have all passed a medical examination in the course of their careers in the Public Service, whether for the purpose of entry into the State Superannuation Fund or for entry into the Public Service itself If they are appointed Magistrates, they will be subject to the provisions of section 19 of the Local Courts Act under which they may be suspended or retired from office on physical or mental grounds. In our view, to impose a medical examination requirement on those stipendiary magistrates who would otherwise be appointed Magistrates could cause undue hardship. We recommend that the requirement of a medical examination be waived in relation to the first appointments of persons who are now stipendiary magistrates, but that it be not waived in relation to appointments of any other persons.

B. Stipendiary Magistrates who are not Appointed Magistrates

5.28 Clause 5(3) of Schedule 1 to the Act is concerned with stipendiary magistrates who are not appointed Magistrates. We have referred to the clause on a number of occasions in this Interim Report. The clause itself is reproduced in paragraph 3.24 and some of its implications are mentioned in paragraphs 3.25-3.28, 4.10 and 4.27.

5.29 As we have explained, we think that it is reasonably clear that a stipendiary magistrate who is not appointed a Magistrate will in whatever position in the Public Service to which he or she is appointed pursuant to clause 5(3), be subject to sections 113, 114 and 118 of the Public Service Act, 1979. In short, he or she will legally be at risk at some time in the future of being dismissed or having to suffer a reduction in salary. We think it exceedingly unlikely that section 118, which preserves the common law right of the Crown to dispense with the services of its servants at pleasure, would be used to dismiss a person except perhaps in a case of gross misconduct. If dismissal were to be effected it is more likely that section 113 would be invoked. This section enables the Public Service Board, with the approval of the Governor, to dismiss excess staff who cannot use fully be employed in the Public Service. Again, we think it unlikely that this section would be invoked in the case of a stipendiary magistrate who is not appointed a Magistrate. It is, however, a possibility. In practice, we think it more likely that after a period of some years, action might be taken against a stipendiary magistrate, pursuant to section 114, to reduce his or her salary to a level appropriate to the work then being performed.

5.30 We said in paragraph 4.28 that it would be a serious matter to disturb the expectation that stipendiary magistrates will enjoy continuity of service and salary within the Public Service. We also said there that legislation 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 current salary, except in accordance with the conduct and discipline provisions of the Public Service Act 1979. For reasons we have given we do not think that stipendiary magistrates are entitled to automatic appointment as Magistrates. We do think, however, that they should not suffer loss of employment or reduction in salary as the result of the implementation of the Local Courts Act This view is consistent with what we believe ought to have been the purpose of clause 5(3) of Schedule 1. Indeed, it may be consistent with a proper construction of that clause. The clause itself seems to recognise that stipendiary magistrates are different from other officers in the Public Service in that no other officer in the Service performs judicial duties. It is perhaps for this reason that the clause speaks of “classification or salary” as distinct from section 52(6) of the Public Service Act, 1979, which speaks of “classification and salary”. This textual difference may reflect the fact that there could be no position in the Public Service which is comparable in classification to that held by a stipendiary magistrate. To the extent that this result imposes a cost on the State, it is the necessary price for improving the quality of a newly independent magistracy. Accordingly, we recommend that the Local Courts Act, 1982, and, if necessary, the Public Service Act, 1979, be amended to ensure that any stipendiary magistrate who does not accede to the office of Magistrate shall enjoy continuity of service and salary within the Public Service until the date of his or her retirement, subject to the discipline and conduct provisions of the Public Service Act, 1979. We do not rule out the possibility that stipendiary magistrates could be accorded an appropriate degree of security by means other than legislation. This might be done, for example, by the State entering into a contractual arrangement with each stipendiary magistrate not appointed as a Magistrate. We would regard an alternative of this kind as acceptable, provided it gives legal effect to the expectations we have identified as reasonable.

5.31 If the recommendation in the previous paragraph is accepted, we further recommend that all stipendiary magistrates should be advised of its adoption before they are invited to apply for appointment as Magistrates.

C. The Offices of Chief Magistrate and Deputy Chief Magistrate

5.32 We have not considered in this Interim Report the question of appointments to the offices of Chief Magistrate and Deputy Chief Magistrates. We note, however, that on 1 December 1982, during the Second Reading Debate on the Local Courts Bill in the Legislative Council, the Hon J.R. Hallam M.L.C, on behalf of the Hon. D.P. Landa. M.L.C., said:

“The chief magistrate will be assisted in his administration of the magisterial bench by deputy chief magistrates, provision for whom is made in the Act. Currently there are two deputy chief magistrates and this same number will be continued under the new arrangements. I can assure all honourable members that the present chief magistrate and the present two deputies will both be reappointed under the new Act.”¹²

We do not know to what extent this statement reflects the current views of the Government. If it does, the Government can be expected to take the view that the Chairman of the Bench of Stipendiary Magistrates and his deputies should be exempted from any requirement to apply for appointment as Magistrates.

5.33 It is not our function to make recommendations in relation to particular persons.On the other hand, we do suggest that the Government should, as soon as possible, take action in relation to the appointments of the first Chief Magistrate and the first Deputy Chief Magistrates, We do not think that these appointments should be the subject of a recommendation by the appointments Committee referred to earlier. The matter is one for the Government to determine. We think it important however, that the persons to be appointed should be decided upon before the appointments committee which we have recommended begins its deliberations. We say this because we expect that the members of the committee will wish to consult with these designated office holders.

5.34 Magistrates, in common with, among others, judges of the District Court and the Supreme Court will be entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act, 1975. The remuneration of the Chief judge of the District Court is the same as that of a Judge of the Supreme Court and reflects the importance of the office of Chief Judge. We think that there is much to be said for the proposition that the Chief Magistrate should be of equivalent status, and receive the same salary and allowance, as a judge of the District Court. This would reflect the importance of the position within the system of justice in New South Wales and the heavy judicial and administrative responsibilities associated with it. The change, if considered desirable, could be effected either by a determination of the Statutory and other Offices Remuneration Tribunal or by an amendment to section 14 of the Local Courts Act. We do not read paragraph(a) of our terms of reference as requiring or entitling us to make recommendations in relation to matters of this kind in this Interim Report. Nonetheless, they are issues to which the Government may wish to direct attention before making decisions on the initial appointments of the Chief Magistrate and the Deputy Chief Magistrates.

FOOTNOTES

1. See, S. Shetreet. Judges on Trial (1976) G.R. Winters, (Ed.), Judicial Selection and Tenure (1973) (American Judicature Society).

2. Quoted with permission of Sir Laurence Street Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E. Humphreys (July 1983), p.52.

4. See note 1 above: M. Rosenberg (in Judicial Selection and Tenure), “The Qualities of Justices - Are they Strainable?”, p.5.

5. Ibid.

6. Submission No.1.

7. Submission No.7.

8. Submission No.1.

9. Submission No.17.

10. Submission No. 17, p.24. This submission does not advert to the possibility that the Chairman of the Bench of Stipendiary Magistrates may not be appointed Chief Magistrate under section 14 of the Local Courts Act 1982. For the purposes of the present discussion we assume that he will be so appointed and that the Branch would object to any serving stipendiary magistrate also serving on the committee in question.

11. We do not consider it necessary in this interim Report to analyse the technical requirements of natural justice. We note the distinction recognised in the authorities between “forfeiture” and “application case”, and the acknowledgement of an intermediate category of “expectation” cases: McInnes v. Onslow-Fane [1978] 3 All E.R. 211: Cunningham v. Cole. unreported, 14 October 1982, Federal Court of Australia. (Ellicott J.).

12. New South Wales Parliamentary Debates (Hansard), 1 December 1982. p.3586.