Local Court Bill 2014
The Society supports the consolidation and rationalisation of the Court of Summary Jurisdiction and the Local Court and review of the appointment and functions of judicial, quasi-judicial and non- judicial officers. The Society notes this will see repeal of the Magistrates Act and reform of the Justices Act and Local Court Act. The Society notes that this is part of a multi-stage reform with certain procedural matters from the Court of Summary Jurisdiction already under consideration. Also these reforms foreshadow consolidation and alignment of the Court of Summary Jurisdiction and the Supreme Court in relation to criminal matters.
Issues for Consideration
The consultation paper highlighted a number of issues for consideration. The Society notes that some of the legislation referred to, has not yet been drafted. For example: the Local Court (Summary Procedure) Act and as a result the Society?s comments are limited. Overall the Society is keen to ensure that fundamental principles are not eroded by these reforms. These include:
- Independence of the judiciary
- Security of tenure
- Confidence in the integrity of the judicial system.
The Society advocates for evidenced based reform and counsels against significant change without a solid evidentiary foundation and broad consultation which should include other Australian Courts and the Australian Institute of Judicial Administration which has considered these issues in depth.
Jurisdictional Limit for the Local Court (s.11)
Question 4: Do you consider that clause 11 should:
(a) retain the current jurisdiction limit for the Local Court ($100,000); or
(b) have a new jurisdictional limit of $150,000 or $250,000; or
(c) have a jurisdictional limit that may be increased by way of regulation (either discretionary or based on an automatic CPI based review).
The Society does not support an increase in the jurisdictional limit of the Local Court and submits that the jurisdictional limit for the Local Court should remain at $100 000.00.
The Society is concerned that an increase in the jurisdictional limit would put the Northern Territory out of step with other jurisdictions.
Increasing the jurisdictional limit will increase the already overloaded workload of the Court, to the detriment of Court users. Court users need to be assured that the Local Court can provide prompt and cost effective justice in relation to substantial and controversial claims. Users have commented that it is the procedures employed by the Local Court that result in costs being incurred by litigants, costs which are out of proportion to the subject matter of the dispute.
The Society supports evidence based reform. The Society would welcome analysis of the Local Court performance and particularly:
- Qualitative analysis of Local Court decision making.
- How many decisions of the Local Court are successfully appealed?
- Are there opportunities to improve decision making at first instance?
- If so how can they be implemented?
- Quantitative analysis of the impact of court processes on the cost and the timeliness of decisions would also be informative.
Such evidence may address concerns about the Local Court and be a valid foundation upon which to recommend increase in the jurisdictional limit.
Court Procedure (Division 3)
Question 13: Do you agree with the revision of the rule making powers so that they, similar to the provisions in the Supreme Court Act, provide for collective decision making of the magistrates regarding the making of rules.
The Society notes with concern that the rules of Court are at times ignored by Magistrates and this is demonstrated in the considerable disparity between practice of the Court in Darwin and Alice Springs in the care and protection jurisdiction. This disparity does cause difficulty for legal practitioners and other court users. It would thus be an advantage to achieve uniformity and this may be approached through consultation and collective decision making. However consultation requirements will vary in each instance and may include other stakeholders such as the Society. Ultimately mechanisms to resolve these concerns rest with the Court.
The Society does not consider that the legislated rule making power should mandate collective rule making. In the Society?s view it is a matter of good management to ensure that the rules put in place are adopted and readily applied and to some degree consultation and collaborating is likely to achieve this. What that consultation entails in each instance will be a matter for the Chief Magistrate and may include all Court users. It is for the Court to determine the most productive process for the Court and for rule making. However when at times there is considerable disparity it may be that consensus is unattainable and rule making would thus not occur. It would be unhelpful if the rule making power of the Court to be restricted by such a requirement and the Society is happy that the Chief Magistrate continues to be responsible for rule making.
The Society is aware that the rules of Court are disallowable instruments and as such it is open to Court users to seek to disallow rules that have been implemented without appropriate consultation. Consideration has been given to engaging such a process in recent times.
Contempt (Division 4)
Do you consider that, as part of the Local Court reforms, contempt of lower courts? (and related Tribunals) should be reformed so that they are the same (i.e. consistent with one another)? Would it be appropriate to include, in addition to section 8 of the Criminal Code Act, a generic provision in the Criminal Code that would deal with contempt for all courts and a generic offence for all tribunals and other bodies/officials responsible for taking evidence?
The Society is concerned that a summary charge of contempt should be a last resort, exercised with restraint, and only used in exceptional circumstances.
The Society acknowledges there will be times when contempt in the face of the court needs to be immediately dealt with to prevent the obstruction of justice and preserve the authority of the court. However, the current Bill does not have separate procedures for contempt in the face of the court and general contempt of court.
In these circumstances, the Society considers the legislation should contain:
- a provision ensuring that the Magistrate as the Victim and/or Witness is not able to conduct the contempt proceedings; and
- a right to appeal a decision of contempt.
This is important as a finding of contempt of court may result in incarceration and therefore must be subject to a fair trial.
The Society notes the significant increase in the penalty for contempt. Currently, the penalty stands at 1 month and 15 Penalty Units (PU). The proposed legislation increases the penalty to 6 months and 100 PU. The consultation paper points to inconsistencies in various local jurisdictions but does not point to any evidence to support this increase. Further, the proposed increase will not address these inconsistencies.
The Society does not support unsubstantiated increases in penalties.
Complaints about Judicial Officers
Question 14: is there a need to set out some legislated process for dealing with complaints about judicial officers?
The Society is of the view that the independence of the judiciary is paramount. As such a legislated regime has the potential to unacceptably impede that independence.
Currently legal practitioners can raise concerns about the conduct of Judges and Magistrates with the head of the jurisdiction directly or through the Society. In recent years the Society has had cause to raise concern with the Supreme Court, the Magistrates Court and the Federal Circuit Court. These concerns have included delays in delivery of judgments, judicial bullying and harassment. The experience of the Society is that the current system is not entirely satisfactory but may be the best balance of competing concerns.
Another problem with the current system is that it is not available to all Court users. Unfortunately the Society receives regular calls from the public seeking to complain about the conduct of judicial officers. Whilst the Society is obliged to investigate complaints about legal practitioners even though they have subsequently been appointed judicial officers it does not investigate the conduct of sitting judicial officers and is challenged to advise such callers where to refer their concerns.
The Society would thus strongly advocate for heads of jurisdiction to implement a transparent mechanism open to all Court users to register complaints about judicial conduct. This mechanism should explain what matters are the valid bases for complaints and outline the process to be undertaken in respect of complaints received.
The Society acknowledges that many jurisdictions including the Federal Circuit Court have non-legislative mechanisms for investigating judicial conduct. The Society would welcome the opportunity to consider models for complaints investigation and their usefulness particularly dealing with issues such as judicial bullying however addressing concern about how serious allegations of judicial misconduct ought be investigated. To date such processes have been ?ad hoc? and appropriate consideration needs to be given to mechanisms that reinforce important principles of judicial independence but provide assurance to a concerned public.
A transparent process also ensures that complainants are aware of the likely outcome of their complaint. The Society notes any such complaints process raises complex issues and the Society notes the Law Reform Commission of Western Australia report 102 delivered August 2013 which considers how such regimes may best balance the independence and impartiality of the Courts with the need for a mechanism to deal with the more serious concerns.
Removal of Magistrate
The Society would also strongly advocate for greater transparency and articulation of a procedure for removal of judicial officers, noting that security of tenure and judicial independence are paramount. The Society notes that the Discussion Bill at s.52 (3) does not reflect the entirety of the provisions of s.40 of the Supreme Court Act. The test for dismissal under s.52 (3) of the Bill for a Magistrate is lower than that of a Judge as a Magistrate can be dismissed on the grounds of misbehaviour, rather than proven misbehaviour. The requirement that the misbehaviour is proven raises the expectation that there will be a process for arriving at such proof.
In the Society?s view this undermines the independence of the Magistracy.
Security of tenure is an important safeguard to ensure the impartiality of the Courts system. The Society is concerned that the provisions for temporary appointment of Magistrates by the Minister undermine the independence of the Court. The Society does not support appointment of temporary Magistrates whose terms and conditions are subject to the will of the executive and whose tenure can continue without limit.
The Society is also concerned that such ?temporary appointments? can continue indefinitely. This equates the appointment of a Magistrate to that of an executive contract employee. The Society objects to these provisions and recommends that even temporary appointments should be:
- subject to the scrutiny of the Legislative Assembly
- made by the Administrator
- on conditions that are transparent and accountable
- not renewable beyond 12 months
- subject to the same provisions for removal
Magistrates as Judges
Question 10: Do you consider that ?magistrates? should be renamed as ?Judges?
Question 11: If yes, do you think that the NT, at the State/Territory level, should take unilateral action or wait until most other States and Territories, have adopted this as a policy position.
The Society acknowledges the submissions put forward by the Chief Magistrate regarding a change in title from Magistrate to Judge, however the Society does not support the proposal. Importantly the Society sees no benefit for the people of the Northern Territory nor does it promote the interests of justice. The Society is concerned that it is possible however that such a change would generate greater confusion for those appearing in the Court of Summary Jurisdiction and diminish the important distinction between the two Courts.
There are a number of important differences between Judges and Magistrates which still remain and the Society submits these cannot be disregarded and confirm that Magistrates are not Judges in the pure sense.
Magistrates still perform quasi-legal functions. They still have administrative functions.
There are significant differences in the requirements of appointment between Magistrates and Judges. The appointment of Magistrates is dealt with under section 48 of the Discussion Bill. A person is eligible to be a Magistrate if they are under 70 years of age and have been a lawyer for at least five years, rather than the ten currently required for eligibility for appointment as a Judge in the Supreme Court.
The test for dismissal under s.52 (3) of the Discussion Bill for a Magistrate is lower than that of a Judge. Under the Discussion Bill a Magistrate can be dismissed on the grounds of misbehaviour, where the Supreme Court requires proven misbehaviour. The Society submits this again diminishes the standing of Magistrates.
Furthermore the Discussion Bill provides that temporary Magistrates can be appointed by the Minister rather than the Administrator. The temporary appointee is subject to the terms and conditions of the appointer which in the Society?s opinion exposes the Magistrate to significant influence from the executive (particularly where the desire is to have ones appointment renewed). Additionally the temporary Magistrate is not subject to the same provisions for removal, and the Discussion Bill proposes that temporary appointments may be renewed indefinitely. Such exposure to influence of the executive suggests that Magistrates are not Judges.
The Society submits that arguments in favour of the change are not made out. The Society does not consider that re-naming the Magistracy would in any way improve the pool of candidates for the position. The Society notes that anecdotally there were a significant number of applicants for the advertised vacancy and the position was hotly contested, indicating that the profession continues to be interested in attaining appointment.
The Society submits that see recent changes to the Federal Magistracy does not amount to unqualified support for the proposal, noting that there were additional issues at play regarding terms and conditions that may have played a greater role in bringing about the reform. These are not current issues in the Northern Territory.
The Society is concerned that the Northern Territory should not take such a step lightly ahead of other Australian jurisdictions. The Society supports continued adherence to the agreement of the Standing Council of Attorneys General that any such change should be made unanimously.
Furthermore given the impact on other jurisdictions any consideration of such a move should seek submissions from other Australian jurisdictions and also consider what would occur if in the future, the Territory is required to introduce an intermediary court?
For the above reasons the Society does not support the proposal that Magistrates be re-named Judges.
The Society is concerned that there are a number of provisions that diminish rather than enhance the role of the Magistracy in the Discussion Bill. Furthermore the Society submits that some reforms are not supported by the profession or by evidence that they would achieve improvement. The Society welcomes further discussion about complaints and conduct about judicial officers.
 Keeley v Brooking (1979) 143 CLR 162