MAGISTRATES (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:16): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This is a Bill to amend the Magistrates Act 1983 (the Magistrates Act). The Bill modernises the Magistrates Act in a number of ways and introduces changes designed to improve public confidence in and understanding of the judicial system.

In modernising the Act, the Bill firstly removes the term 'stipendiary' wherever it appears with 'magistrate'. The title of 'stipendiary magistrate' merely indicates that the magistrate is a paid magistrate. It is an antiquated term, not understood by many in the public nor used any longer in other jurisdictions. The Bill abolishes the administrative positions of 'Supervising Magistrate' and 'Assisting Supervising Magistrate'. These positions were originally intended to provide for the day to day management of a magistrates court. Given the jurisdictional shifts and consequent changes in workload, the positions are now superfluous.

Instead, the direction and delegation provisions within the Act are sufficient to provide the Chief Magistrate with a flexible approach in respect of the delegation of administrative tasks for the appropriate management of the Magistrates Court. Also, consistent with the District Court Act 1991, the Bill places responsibility for the administration of the magistracy solely on the Chief Magistrate, removing the qualification 'subject to the control and direction of the Chief Justice' from section 7 and, reflecting current practice, modifies section 5 to require the Attorney-General to consult with the Chief Magistrate (in addition to the current requirement to consult the Chief Justice) on all new appointments to the magistracy.

In line with government policy of attracting the best candidate to leadership positions within the judiciary, the Bill also amends the eligibility requirements of the Chief and Deputy Chief Magistrates. Currently, the Act requires that a person already be a magistrate to be eligible for appointment as Chief or Deputy Chief Magistrate. The Bill removes this requirement and inserts that a person have at least 7 years practice as a legal practitioner, enabling a person outside of the magistracy to be appointed to the positions, effectively widening the pool of candidates and expertise.

Finally, the Bill amends provisions relating to the removal of magistrates, including the grounds for removal of a magistrate. Current procedure for removal of a magistrate involves an investigation and then judicial inquiry in order to determine whether proper cause exists for removal. Currently, section 11(8) provides that proper cause for removal exists if:

(a) the magistrate is mentally or physically incapable of carrying out satisfactorily the duties of his office; or

(b) the magistrate is convicted of an indictable offence; or

(c) the magistrate is incompetent, or guilty of neglect of duty; or

(d) the magistrate is guilty of unlawful or improper conduct in the performance of the duties of his office.

Improper conduct that occurs outside the performance of duties as a magistrate can raise questions about the suitability of a magistrate to continue in public office and undermine authority as a magistrate. Importantly, it can affect the public's confidence in how a magistrate will perform the duties of the position.

The Bill amends section 11(8) of the Magistrates Act to include 'conduct that renders the magistrate unfit to hold office as a magistrate, regardless of whether that conduct relates to the functions of the office.' This amendment will allow for the removal of a magistrate for improper conduct of a serious nature outside the duties of office without the need for a conviction for an indictable offence.

Further to this, the Bill also incorporates a new provision which allows the Attorney-General, with the approval of the Chief Justice, to require a magistrate being investigated pursuant to section 11, to undergo one or more medical examinations for the purpose of assisting in determining whether proper cause exists for removing the magistrate from office. In the event a magistrate fails to comply with the request, a statement as to the refusal may be included in any report prepared in relation to the investigation and, in turn, taken into consideration when determining whether proper cause exists.

This amendment is a necessary and appropriate measure, addressing potential performance management concerns, particularly in light of the recent increase in the retirement age. The amendment does not alter the investigation and removal process currently established in the Magistrates Act. Such a request to undergo medical examination will form part of the inquiry process already established under section 11. However, it does provide an appropriate measure to be utilised in a situation where confidence in a magistrate's capability to perform the duties is being questioned.

I commend this Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Magistrates Act 1983

4—Amendment of section 3—Interpretation

The amendments in this clause relate to the definitions that apply under the Act. Specifically, the amendments in this clause substitute the definition of stipendiary magistrate with magistrate and substitute references to stipendiary magistrate with magistrate in the definitions generally. This is consistent with substituting all outdated references to stipendiary magistrate with references to magistrate in the Act.

5—Repeal of section 4

This clause repeals section 4 of the Act. Section 4 of the Act provides for transitional arrangements in relation to the position of a magistrate which are no longer required.

6—Amendment of section 5—Appointment of magistrates

This clause deletes subsection (2), which provides for the appointment of stipendiary magistrates.

Amendments to subsection (4)(b) provide that the Chief Magistrate must be consulted by the Attorney-General before a recommendation for the appointment of a magistrate is made, whether or not the appointment is to be on a part-time basis.

7—Substitution of section 6

6—Magistracy

The substituted section 6 provides for the appointment of a Chief Magistrate and a Deputy Magistrate by the Governor on the recommendation of the Attorney-General and removes the capacity to appoint Supervising Magistrates and Assistant Supervising Magistrates.

Proposed subsection (2) provides that a person is not eligible for appointment as the Chief Magistrate or Deputy Chief Magistrate unless he or she is a legal practitioner of at least 7 years standing.

The proposed section departs from the existing section by no longer making reference to stipendiary magistrate and, consequently, removing the eligibility requirement that a person be a stipendiary magistrate before an appointment as the Chief Magistrate or Deputy Chief Magistrate can be made. Rather, the Deputy Chief Magistrate will be taken to have been appointed as a magistrate if he or she does not already hold that position. (A similar provision will apply in relation to the Chief Magistrate on the commencement of section 19B of the Statutes Amendment (Courts Efficiency Reforms) Act 2012).

8—Amendment of section 7—Administration of magistracy

Subclause (1) removes the requirement in subsection (1) of the principal Act that the Chief Magistrate's responsibility for the administration of the magistracy be subject to the control and direction of the Chief Justice.

Subclause (2) substitutes subsection (3) of the principal Act to make changes consistent with the Statute Law Revision process undertaken for the purpose of the measure.

9—Substitution of section 8

8—Magistrates responsible to Chief Magistrate

Proposed section 8 departs from the existing section 8 by removing the reference to a stipendiary magistrate or an acting magistrate from subsection (1) and by not replicating existing subsection (2).

10—Substitution of section 9

9—Tenure of office

Most of the amendments contained in new section 9 are of a statute law revision nature but departs from the existing section by raising the retirement age of a magistrate to 70 years (from 65).

11—Amendment of section 10—Suspension from office

This amendment is consequential on the removal of references to stipendiary magistrate.

12—Substitution of section 11

This clause inserts an additional ground for the removal of a magistrate from office. Proposed paragraph (e) provides that proper cause for removing a magistrate from office exists if the magistrate is guilty of conduct that renders the magistrate unfit to hold office as a magistrate, regardless of whether that conduct relates to the functions of the office.

11—Removal of magistrate from office

New section 11 provides that an investigation to determine whether proper cause exists for removing a magistrate from office—

may be conducted by the Attorney-General on the Attorney-General's own motion; and

must be conducted by the Attorney-General at the request of the Chief Justice (made after consultation with the Chief Magistrate).

The new section sets out the procedure for any such investigation, including the ability to require a magistrate to undergo medical examinations for the purpose.

As in the current section, the Attorney-General must apply to the Full Court for a determination of whether the magistrate should be removed from office if a magistrate is convicted of an indictable offence or it appears from the findings of a judicial inquiry under this section that proper cause exists for removing a magistrate from office and, if the Full Court determines that a magistrate should be removed from office, the Governor may do so.

The section provides for an additional proper cause for removing a magistrate from office if the magistrate is guilty of conduct that renders the magistrate unfit to hold office as a magistrate, regardless of whether that conduct relates to the functions of the office.

13—Amendment of section 13—Remuneration of magistrates

This amendment is consequential on the removal of the positions of Supervising Magistrates, Assistant Supervising Magistrates and the Senior Magistrates.

Further consequential amendments are made by this clause to remove a reference to stipendiary from section 13.

14—Amendment of section 14—Superannuation

15—Amendment of section 15—Recreation leave

16—Amendment of section 16—Sick leave

17—Amendment of section 17—Long service leave

18—Amendment of section 18—Special leave

19—Amendment of section 18A—Concurrent appointments and outside employment etc

20—Amendment of section 19—Determination of rights on transition from other employment

The amendments proposed by these clauses will remove references to 'stipendiary' from the sections and make other changes consistent with the statute law revision process undertaken in respect of the principal Act.

21—Substitution of section 20

20—Payment of monetary equivalent of leave to personal representative etc

Proposed section 20 is substantively the same as the existing section 20 in the principal Act. The changes made reflect the removal of references to 'stipendiary' and other changes consistent with the statute law revision process.

22—Amendment of section 21—Industrial awards not to affect magistrates

This clause removes a reference to 'stipendiary' from section 21 of the principal Act.

Schedule 1—Related amendments

Schedule 2 makes related amendments to other Acts relating to the amendments proposed to the Magistrates Act 1983.

Schedule 2—Statute law revision amendments of Magistrates Act 1983

Schedule 2 makes amendments to the principal Act to convert various outdated references and to make other technical changes to accommodate current drafting practices.

Debate adjourned on motion of Hon. J.M.A. Lensink.