I. INTRODUCTION

This Interim Report 's mainly concerned with the procedures and criteria which should be followed and applied for selection of the persons to be first appointed as Magistrates under section 12(1) of the Local Courts Act, 1982.

In this Summary we list the major recommendations made in the Interim Report In some instances the words used are different from those used in the Report itself Where this occurs the Summary must yield to the Report In other instances the recommendations are not listed in the same order as the recommendations contained in the Report. The Summary does contain however, cross-references to the appropriate paragraphs of the Report.

By way of background information we note that the Local Courts Act, 1982, was assented to on 24 December 1982 and that most of its provisions will not commence until a day is appointed by the Governor and notified by proclamation published in the Government Gazette. On that day, Courts of Petty Sessions will be abolished and Local Courts will take their place. Subject to some minor and presently irrelevant exceptions, Local Courts will be presided over by persons appointed under section 12(1) of the Act as "Magistrates". These Magistrates will take the places of the persons who, immediately before the appointed day, were employed in the position of "stipendiary magistrate" and who presided over Courts of Petty Sessions. Where we speak in the Interim Report, and in this Summary, of a “Magistrate”, we refer to a person to be appointed to preside over Local Courts, and where we speak of a “stipendiary magistrate”, we refer to a person who, immediately before the appointed day, presides over Courts of Petty Sessions.

II. RECOMMENDATIONS

1. Stipendiary magistrates should not be automatically appointed as Magistrates under the Local Courts Act.

(Paragraph 4.30 and see, generally, paragraphs 4.6-4.29.)

2. The first appointments of Magistrates should be undertaken by means of a process which we call "phased selection". Under this process:

• applications for appointment would first be invited from all 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.

(Paragraph 4.52 and see, generally, paragraphs 4.31-4.51.)

3. Although ultimate responsibility for making the first appointments of Magistrates must be that of the government on the recommendation of the minister, an appointments committee of the kind referred to in Recommendation 2 should be constituted to advise the Minister in relation to the first appointments.

(Paragraph 5.11 and see, generally, paragraphs 5.10 and 5.12.)

4. The Chief Justice of New South Wales and the Chief Judge of the District Court should be members of the appointments committee and the Chief justice should be the Chairman of the committee.

(Paragraph 5.14 and see, generally, paragraph 5.13.)

5. The appointments committee should include the Solicitor General and one other person who could be Mr. A.L Barnett (formerly Deputy Under Secretary of the Department of the Attorney General and of Justice and now the Electoral Commissioner for New South Wales).

(Paragraph 5.17 and see, generally, paragraphs 5.15 and 5.16.)

6. 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.

(Paragraph 5.19.)

7. The appointments committee should be empowered to make recommendations in relation to any appointments which may be needed to fill any vacancies in the Bench of Magistrates arising out of the non-appointment of any stipendiary magistrates, and, for this purpose, a process of open selection should be followed.

(Paragraph 5.25 and see, generally, paragraphs 4.39-4.53.)

8. For the purposes of Recommendation 7, the Chief Magistrate should be invited to join the appointments committee.

(Paragraphs 5.25 and 5.26.)

9. In determining the applicants who are to be recommended for first appointments as Magistrates, the appointments committee should take into account

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

(Paragraph 5.,7 and see, generally, paragraphs 5.2-5.6.)

10. There should be no medical examination requirement in relation to the first appointments as Magistrates of persons who are now stipendiary magistrates.

(Paragraph 5.27.)

11. The Local Courts-Act, 1982, and, if necessary, the Public Service Act, 1979, should 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.

(Paragraph 5.30 and see, generally, paragraphs 3.24- 3.28, 4. 10 and 4.27-4.28.)

III. OBSERVATIONS

In recommending that the Chief Justice of New South Wales and the chief Judge of the District Court should be members of our recommended appointments committee, we are aware that the Attorney General has approached them and that each has indicated that he is willing to serve on such a committee, if one is to be established (Paragraph 5.14). Both the Chief Justice and the Chief Judge have indicated that this willingness is based upon the expectation that, unless there are very exceptional circumstances, the advice of any such committee will be followed (Paragraph 5.18).

Given the eminence and expertise of the persons we have proposed for membership of the appointments committee, we consider it unnecessary and indeed inappropriate for us to specify in detail the procedures that 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 as Magistrates as soon as possible (Paragraph 5.20).

Chapter 6, the final chapter of the Interim Report lists a number of issues that may call for attention in our Final Report. The list is illustrative rather than exhaustive and may be modified in the light of submissions and our later research.