MAGISTRATES COURT (SPECIAL JUSTICES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 November 2009. Page 4090.)

The Hon. R.P. WORTLEY (17:51): I rise today to address the Magistrates Court (Special Justices) Amendment Bill. This is a short piece of legislation that has considerable ramifications. It concerns the expanded role for special justices, who are justices of the peace appointed under the Justices of the Peace Act 2009.

This is a venerable office. The origin of justices of the peace has been traced back to Britain in 1195 when knights appointed by the king, and known as keepers of the peace, were responsible for ensuring that the law was upheld. By the mid-14th century these peacekeepers were known as justices of the peace, and they had powers to hear and determine certain offences and punish offenders. Consequently, the office of JP is one of the oldest in the common-law system.

Over time, justices of the peace in Britain were authorised to perform more various functions. The office was recognised in the Australian colonies from 1788, and South Australia's first justice of the peace was appointed in 1836. Our special justices, like JPs, perform their role on a voluntary basis, although when sitting they receive a small honorarium. They are not legal practitioners; they have completed a training course at TAFE SA. Theirs is, indeed, a public service.

This bill essentially provides for the Magistrates Court to be constituted of a special justice in the following circumstances: when sitting in its petty sessions division; when hearing uncontested applications of a class prescribed by the regulations; or in any other case when there is no magistrate available to constitute the court. I note that, where a court is constituted of a special justice in criminal proceedings, a sentence of imprisonment may not be imposed. This bill provides, however, that prescribed uncontested applications may be heard by a special justice.

Essentially, the jurisdiction of the petty sessions division will be broadened to allow for the hearing, and determination, of a charge of an offence against the Road Traffic Act 1961, provided that no term of imprisonment applies. These charges are: a charge of an expiable offence where the alleged offender elects to be prosecuted for the offence; a charge of a prescribed offence being an offence where the maximum penalty is a fine of $2,500 or less but includes imprisonment, and the offence is prescribed by the regulations for this purpose; and a charge of any other offence if the maximum penalty is a fine of $2,500 or less or includes imprisonment, but may include disqualification from holding or obtaining a driver's licence.

The new provisions will also allow for applications for the conduct of a review of an enforcement order under sections 10 and 14 of the Expiation of Offences Act 1996. Moreover, the procedural and administrative powers of the court will be able to be exercised by a registrar, special justice or justice, in accordance with the terms of an amended section 15.

These moves are intended to allow a greater range of minor offences to be dealt with by special justices which will, in turn, free up stipendiary magistrates to deal with the more serious of the criminal offences. What will the result be? Improved access to the justice system for those who are engaged in it; improved outcomes for the victims of crime; and improved functioning and efficiency in our courts.

It is without doubt that the two main barriers to the effective function of our judicial system, overall, are cost and delay. Everyone knows how much litigation can cost. Often the courts are seen to be available, in the main, only to the wealthy or to corporations. As for delay, modern case management systems and services, such as alternative dispute resolution, have removed some of the burden, but it remains the case that people have to wait, sometimes for a considerable period, for their day in court. The consequences are obvious. As the Chief Justice of our High Court said in an address to the Supreme Court of Japan:

In the administration of civil and criminal justice, Australian courts, like most courts throughout the world, suffer from the twin problems of cost and delay. The capacity of courts to conduct their business with reasonable efficiency depends to a large extent upon groups who are independent of each other, and whose interests are often in conflict. The executive governments, which fund the courts, the lawyers, and the litigants, all affect the manner in which the 'system' functions. Cooperation is not the hallmark of an adversary system of justice.

The cost of litigation, which principally involves the fees paid by parties to their lawyers and others whose advice and assistance is needed in the conduct of litigation, is influenced by the length of cases, which has increased substantially in recent years. We still have juries for most major criminal trials, and the increasing length of such trials is a matter of concern.

The need for greater efficiency and a less adversarial system (where appropriate) has clearly been recognised and there has been constructive movement. It is essential that taxpayers have confidence in the system: that they believe that it is representational of community interests, and acting on their behalf. They are, after all, paying for it. Indeed, much of the reform has been driven by the courts themselves. This is reflected in the High Court's recent Aon decision. In that case Chief Justice French observed:

The adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.

His Honour is correct: it is in the interests of justice and increased efficiency in the justice system's use of public funds that this bill has come before us today. With these few reflections, I commend the bill.

The Hon. A. BRESSINGTON (17:58): I rise briefly to indicate my support for this bill and, in doing so, I would like briefly to reiterate the contribution of the member for Mitchell in the other place with which I am in full agreement.

If we are going to be creating a fourth arm of our judiciary, on which we will be increasingly relying, we must begin to dignify special justices' contributions. This, of course, would involve a commensurate increase in the special justices' honorarium, along with their jurisdiction. They are paid a paltry $50 a day, which would not cover their expenses, and this is shameful in comparison to the wages paid to those surrounding them, but this also includes the esteem in which they are held within the judiciary and the courts.

That special justices are solely doing paperwork in our busiest metropolitan Magistrates Court, despite having the power to preside over proceedings, suggests to me that they are not being respected by the magistrates they are there to relieve. This may be, in part, a failing of the training provided to special justices, and we can hardly expect the courts to embrace them if they are not well versed in their responsibilities and in the law they are expected to administer.

I repeat the call of the member for Mitchell for a review of the training presently provided and ask whether TAFE is the most appropriate institution to be delivering that training. However, this could also be somewhat rectified if a mentoring system were established, in which serving or retired magistrates could provide new recruits with on-the-job training, particularly in court processes and systems, that they are unlikely to learn from a textbook. With those remarks, I indicate my support for the bill.

Debate adjourned on motion of Hon. I.K. Hunter.

[Sitting suspended from 18:00 to 19:45]