I. THE GENERAL APPROACH

6.1 This Interim Report covers the matters referred to in paragraph (a) of our terms of reference. The terms of reference also require us to outline in this Report the approach that we propose to take to the examination of the matters referred to in paragraph (b). Paragraph (b) requires us to report, having regard to the first years operation of the Local Courts Act 1982, and the objectives of the Act, on

“the amendments, if any, which should be made to the Act, and to any other legislation affecting Magistrates or the structure and organisation of Local Courts (including the procedures and criteria which should be followed and applied for selection of persons to be appointed as Magistrates)”.

6.2 It is clear that paragraph (b) covers a wide range of issues and that it will be necessary to establish priorities. Moreover, some issues may fall within our reference to review the law and practice relating to criminal procedure and might better be considered in the course of that reference. To date our work has been directed almost exclusively to the matters covered by paragraph (a) of the terms of reference. We have, however, identified a number of issues that may call for attention under paragraph (b). These are listed briefly in the second section of this chapter. We emphasise that the list is illustrative rather than exhaustive and could be modified in the light of submissions and our own researches.

6.3 We anticipate that, subject to the availability of resources, we shall follow our usual approach in dealing with Phase II of the reference. This means that we shall among other activities:

• invite submissions from interested groups and individuals on matters covered by the terms of reference;
• hold discussions with Judges, Magistrates, court staff, government departments (especially Attorney General and Justice, and Youth and Community Services), litigants, defendants in criminal cases, legal practitioners, the police, academics and members of the public;
• undertake further comparative research into the structure, organisation and operations of equivalent courts elsewhere in Australia and overseas; and
• conduct meetings or seminars to discuss matters falling within our terms of reference.

6.4 A number of organisations have undertaken or are undertaking, research into the operations of Australian courts. For our purposes, the most notable is the New South Wales Bureau of Crime Statistics and Research. Others include the Law Foundations in New South Wales and Victoria and the new Australian Institute of Judicial Administration. We anticipate that the work of these institutions, and of individual academic researchers, will be of considerable assistance to us. It may be feasible for us to encourage further research by these organisations and individuals which will assist our work.

6.5 Once the Government has announced its intentions concerning the proclamation of the commencement of the Local Courts Act, we shall call for submissions to be forwarded to us by specified date. We shall then proceed to determine the areas and issues to which we will give a special priority. We leave open the question of whether a Working Paper should be prepared, given that this Interim Report has been published. We note that our terms of reference require us to have regard to “the first year s operation of the Local Courts Act, 1982”. Accordingly, we shall not make our final Report until after that period has elapsed.

II. ISSUES FOR EXAMINATION

6.6 We list below some areas, and particular issues, which fall within our terms of reference. This list should be read in the light of our comments in paragraph 6.2.

A. Magistrates

1. Criteria and Procedures for Appointment

• The identity of the appointing body.
• Formal eligibility requirements.
• Criteria for selection
• Procedures for seeking applications.
• The composition powers and procedures of bodies involved in the selection process.

2. Duration and Nature of Appointment

• Voluntary and compulsory retirement ages.
• Extension beyond retirement age.
• Fixed-term appointments.
• Probationary appointments.
• Part-time appointments.

3. Internal Structure

• The appointment powers and responsibilities of the Chief Magistrate and Deputy Chief Magistrates.
• The extent to which there should be different grades of Magistrates.¹
• The role of committees of Magistrates.
• Peer review Procedures.
• Criteria and procedures for promotion.
• Assignment of Magistrates to particular districts or duties.

4. Range of judicial Functions

• The creation of special categories of Magistrates, such as licensing magistrates, industrial magistrates, children’s court magistrates, coroners and mining wardens.
• The relationships between the various courts and offices constituted by Magistrates.²

5. Relationship to Higher Courts

• The respective roles of the Chief Justice and the Chief Judge of the District Court, if any, in relation to Magistrates.
• Permanent or temporary appointment of Magistrates to higher courts.
• Judges of higher courts sitting temporarily in Local Courts.

6. Titles, Dress, Conditions of Service

• Designation of Magistrates as “judges”.
• Court dress.
• Criteria for determination of salary, leave entitlements and other benefits.³
• Residency within an assigned district.

7. Training and Education⁴

• Training after appointment, but before commencement of duty.
• Refresher training and other continuing education
• Sentencing seminars.
• Visits to institutions and agencies.

8. Standards of Conduct

• Formulation of specific rules, for example, in relation to out-of-court associations with legal practitioners or police officers.
• Development of a Code of Conduct.

9. Complaints, Discipline and Disability

• The procedures for making complaints about Magistrates.
• Investigations into the conduct and physical or mental fitness of particular Magistrates.
• Review of investigations.
• Formal and informal determination of complaints.
• Formal and informal disciplinary sanctions.
• Civil liability of Magistrates.

B. The Local Courts

1. Administration

• The appropriate administrative structure for Local Courts.
• The respective roles of Magistrates, the Department of the Attorney General and of justice (including Magistrates Courts Administration) and the Chief Magistrate.
• Allocation of responsibility for specific aspects of administration and for particular geographical areas.
• Provision of staff for the Chief Magistrate and other senior Magistrates.
• Use of management consultants, advisory committees and other outside experts.
• The nature of statistical and other records that should be maintained and published.
• The extent to which computer technology can be utilised in court administration.
• The staffing of individual courts, including the use of police officers as court attendants.
• The making of reports, whether confidential or public, on the operations of Local Courts.

2. Accommodation and Services

Facilities that should be provided for:

• the public;
• Magistrates and court staff;
• legal practitioners;
• police officers.

3. Jurisdiction

Whether there should be changes in:

• the matters in respect of which Local Courts hive Jurisdiction;
• monetary limits on the Jurisdiction of Local Courts;
• the Jurisdiction that can be exercised by the consent of parties.

4. Procedure

• Systems for listing cases.
• Pre-trial proceedings.
• Rights of audience.
• Procedures where parties are unrepresented.
• use of affidavit evidence and written statements.⁵

5. Chamber Magistrates and Clerks of Court

• Criteria and procedures for appointment.
• Powers and responsibilities in relation to Local Courts.
• Training and experience after appointment
• Conditions of service.
• Career prospects, including the opportunity for appointment as Magistrates.

6. Non-Lawyers

• The role and functions of Justices of the Peace.
• The use of assessors by Local Courts.⁶

FOOTNOTES

1. Stipendiary magistrates are presently divided into three grades (paragraphs 2.25-2.28). Draft regulations under the Local Courts Act, 1982, propose two Grades. Some submissions to us have argued that there should be only one grade, contending that more than one is inconsistent with judicial independence and that gradings involve bureaucratic assumptions inappropriate to the work of the Bench (submission No.17, 35 and 57).

2. Some provisions of the Child Welfare Act, 1939, and the Community Welfare Act, 1982, may require amendment if Magistrates constituting Children’s Courts are to enjoy the same independence as Magistrates constituting Local Courts (Submission Nos. 30 and 48).

3. Submissions have proposed conditions of employment closer to those of judges. Salary, extent and types of leave, and the structure of superannuation or pernsion benefits are the main issues (Submissions Nos. 3, 17 and 36).

4. One submission specifically suggested a Training Institute for Magistrates (Submission No. 49). Another suggested that Children’s Courts’ Magistrates require special skills and experience including “and awareness of the relevant criminological research relating to criminal behaviour in children” (Submission No. 54).

5. The capacity of the court to cope with the volume of cases is raised by submission No. 58. A suggestion that matters could be streamlined (without injury to “rights”) by use of written statements and affidavit evidence is outlined in Submission No. 36.

6. Sections 77 and 78 of the Community Welfare Act, 1982, provide for the presence of an assessor. See also Submission No. 54.