Bills

Statutes Amendment (Judicial Registrars) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 February 2017.)

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (11:34): I would like to thank honourable members who contributed to the second reading of this bill. This bill amends a number of acts to create the judicial office of judicial registrar in the Magistrates, Youth, District and Supreme Courts.

The appointment of judicial registrars will produce efficiencies in the courts to which they are appointed. The primary benefit is expected to be that uncontested high-volume and less complex proceedings, and matters likely to resolve, could be redirected to judicial registrars thus allowing other judicial officers of the Magistrates, Youth, District and Supreme Courts to devote more time to complex matters and the criminal and civil case load of the courts.

A number of interstate and federal jurisdictions have judicial registrars in their courts, especially Victoria, where there are provisions for judicial registrars throughout the court system in that state. Although there are some differences in these other jurisdictions, there are many similarities in the qualifications and functions of the judicial registrars in their courts which are also reflected in this bill. In this state, under the bill, the powers of judicial registrars would be largely a matter for the head of the relevant court to prescribe in rules or assign on a day-to-day basis but subject to the regulations.

The bill provides a strong framework for independence of judicial registrars from the executive branch of government. This includes, in particular, requiring the concurrence of the head of the relevant court before a judicial registrar is appointed or reappointed by the Governor. The head of the court's concurrence is also required in respect of a judicial registrar's term of appointment, their remuneration and their conditions of service and before they can be removed from office. The Hon. Mr McLachlan has filed two sets of amendments which are in the alternative. The government opposed both sets of amendments in the lower house and continues to oppose them.

I will speak first to the first set of amendments. This set of amendments is in the alternative to the second set filed simultaneously, and proposes that judicial registrars, as fixed term appointees, will not be able to hear contested civil matters. The opposition is of the view that fixed terms would compromise the independence of judicial registrars, particularly where they are hearing matters in which the state is a party. As I noted earlier, this set of amendments is opposed by the government.

The requirement that in civil proceedings judicial registrars would only hear uncontested applications would severely compromise the effectiveness and efficiency of courts having judicial registrars. Although the Deputy Leader of the Opposition informed the House of Assembly that the amendments would apply to trials only, uncontested means uncontested.

The opposition's amendments would rule out judicial registrars hearing simple, albeit contested, interlocutory proceedings, such as adjournment requests, applications for discovery of documents, and the like, as well as contested trials. The opposition's amendments would detract from the intent of the bill to save as much of the time of tenured judicial officers as possible, by having the routine or low-level work of the courts able to be performed by judicial registrars.

The scope of a judicial registrar's jurisdiction should be left to the individual courts to determine by their rules, or at the discretion of the head of the court, and for the Governor to make regulations where necessary. This is what, broadly speaking, occurs in the Family Court and in several interstate courts that also have judicial registrars.

Research conducted by the Attorney-General's Department indicates there is no strict correlation in legislation interstate between fixed term appointments and whether judicial registrars can hear contested matters. The legislation appears to be silent on the matter. One can reasonably assume that the jurisdiction of judicial registrars is left to the discretion of the head of the court for listing decisions, taken on a day-to-day basis, or in the rules of the court or practice directions. That is, in fact, what occurs under the practice directions of the Queensland Magistrates Court, which excludes judicial registrars from hearing contested domestic violence orders and certain contested applications where the amount claimed exceeds $50,000.

The head of the relevant court can be entrusted with the discretion to list proceedings that are suitable to be heard by a judicial registrar according to their competency and expertise and the complexity and sensitivity of the proceedings. The Chief Justice, Chief Judge of the District Court, the Judge of the Youth Court and the Chief Magistrate, as heads of relevant courts, will exercise that discretion sensibly and will not list matters for judicial registrars that are inappropriate for them to handle.

The opposition is misconceived in its concern that a judicial registrar would not be able to exercise an independent judgement in contested cases involving the state simply because they are appointed to fixed terms, rather than hold tenure. If the argument were valid, it would apply also to auxiliary judges appointed for 12-month terms or on a case-by-case basis. However, as the Attorney-General observed in the House of Assembly, the opposition has not made any complaint about the impartiality of auxiliary appointees. As the Attorney also observed, judicial registrars would generally perform highly routine matters and not sensitive commercial litigation or other significant proceedings in which the state or any other person was a party.

It is also inconsistent that the opposition would propose that a judicial registrar could not hear a contested civil matter, but could theoretically hear a contested criminal matter such as a not guilty plea, provided he or she did not impose a sentence of imprisonment. This fact alone highlights the weakness of the opposition's proposed amendments because in virtually all criminal matters the state is a party through the agency of either the police, the Director of Public Prosecutions or other government agencies as prosecutors.

I will now address the second set of amendments filed by the Hon. Mr McLachlan. This set of amendments is in the alternative to the first set and proposes that judicial registrars be appointed up to the age of 70 years. On that basis, the opposition would not demand that judicial registrars only hear uncontested civil matters. All the opposition's proposed amendments in this set are opposed by the government. For the sake of flexibility, the government proposes that judicial registrars be appointed for a minimum of seven years, with the potential for renewal. This is broadly similar to what occurs in other courts.

The research conducted by the Attorney-General's Department indicates that only in the Land Court of Queensland is there no option to appoint judicial registrars to fixed terms, but rather, judicial registrars are appointed up to the age of 70 years. In other courts, registrars are appointed for fixed terms, or, in some cases, with an option to appoint up to the age of 55 or 70 years. For example, in the five Victorian courts that have judicial registrars—namely, the Children's Court, Coroner's Court, County Court, Magistrates' Court and Supreme Court—judicial registrars are appointed for up to five years.

In the District Court of New South Wales, judicial registrars are appointed for up to five years. In the Magistrates Court of Queensland, judicial registrars are appointed for a specified period or until the age of 70 years, and in the Family Court of Australia judicial registrars are appointed for up to seven years or to the age of 65. Appointing judicial registrars to fixed terms is also more consistent with the nature of high-volume, routine functions likely to be undertaken by a judicial registrar. The government considers that fixed seven-year terms provide sufficient independence of judicial registrars, taken together with other provisions that require the head of the relevant court to concur with appointments, reappointments, terminations and terms and conditions of appointment, including remuneration.

The heads of the relevant jurisdictions have been consulted on the drafting of the bill and support its terms. No objection was expressed by their honours in respect of the proposed fixed terms of office of judicial registrars. The Chief Justice wrote to the Attorney-General on 1 March this year that the provisions of the bill, whereby the heads of the relevant jurisdictions will control the matters which a judicial registrar may determine and be consulted on their appointments, sufficiently ensure the independence of judicial registrars, notwithstanding their limited tenure.

The Chief Justice expressed the view that the bill would, if enacted, substantially benefit the administration of justice and that there are many procedural applications which needlessly take the time of judicial officers which could be more usefully spent on matters of substance. I commend this bill to members.

Bill read a second time.