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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-19 Daily Xml
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MAGISTRATES COURT (SPECIAL JUSTICES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 October 2009. Page 3814.)

The Hon. R.D. LAWSON (17:02): Liberal members will support this bill, which will extend the jurisdiction of those justices of the peace who are qualified as special justices. The Liberal Party has always been a strong supporter of justices of the peace and we commend the excellent work they do. We also support the great work of the Royal Association of Justices of South Australia Incorporated.

Justices of the peace and special justices are the holders of an honourable and ancient office under the Crown. The presence in the community of a body of citizens of honour and integrity is important, and it is important not only for the administration of justice but also for a number of other functions, for example, the certifying and endorsement of documents and the like.

The Attorney-General has made some unfair and misguided comments about the Liberal Party and about the alleged attitude of the leader, Mrs Isobel Redmond, in relation to this bill. In one sense, I welcome these comments because they demonstrate the fears of the Labor Party about the increasing public acceptance of Mrs Redmond which is coming at a time when the scales are falling off the eyes of the electorate in relation to the lacklustre performance of many ministers in the Labor government.

The Attorney-General should in my view examine his own conscience before casting aspersions against the Leader of the Opposition. Let me provide the council with an example. One of the issues that has long concerned justices of the peace in South Australia and also the Royal Association of Justices—and when I say 'long', I mean for many years—is the fact that justices of the peace who desire to undergo the course of training with TAFE have to pay their own fees.

This does not apply to special justices for whom the government does pay the fees but to the thousands of other justices of the peace who wish to undergo a course and who have to pay a fee. If the Attorney-General had any close connection with justices and their concerns, he would be well aware of this issue. Indeed, he is aware of it. He was asked in an estimates committee by the member for Morphett:

Why is the government not meeting the cost of training courses for justices of the peace who volunteer to serve in the court system? I have been told by justices who attend the training course at Adelaide TAFE organised by the Attorney-General's Department and the Royal Association of Justices that they have to pay $52.50, which is reduced to $42.50 if they are members of the association.

The Attorney-General responded. He said, first, that the government paid the fees of special justices, but then he went on to say:

If justices of the peace who are not going to be special justices and who only witness and attest documents, as I do as a justice of the peace, wish to do a TAFE course, they have to meet that from their own resources.

So, it is clearly established that the Attorney-General is aware of this issue. However, I was intrigued to read that, on 16 September this year, just before this bill was introduced, the Attorney appeared on Leon Byner's show on radio FIVEaa. He extolled the benefits of this particular bill and made a number of other statements not relevant to the debate tonight nor, indeed, relevant to anything. However, a caller named Bruce called in and said:

I'm a JP and I think what you're planning to do is in order, however why should JPs…have to go and pay to be a JP, the course they run at TAFE…you don't have to do the course which I think is an issue, but if you do elect to go and do the course, like I did, why should you have to pay to actually volunteer time to public service?

The Attorney responded:

The vast majority of people who do this are happy to pay and I've never had that complaint made to me before.

Caller Bruce went on:

…but would you agree that any volunteer, regardless of what their role is, should not be out of pocket by virtue of volunteering their time?

The Attorney said in response:

Well Bruce many volunteers are out of pocket, but that's part of the spirit of volunteering, this is not a complaint that is commonly made…Bruce, but when your political party is in office, I'm sure they'll do what you say.

Bruce had not identified himself as a member of any political party. I certainly do not know who he is. He had commended the Attorney-General for introducing the bill and had not acted in a hostile fashion at all, but there on the public airwaves you get a snide response from someone who flies under the colours of the first law officer of the state.

In the same interview, the Attorney talked of what he described as 'just another example of the spirit of volunteering in South Australia'. What hyperbole and what hypocrisy. Where was the great spirit of volunteering when the Labor government of the day did away with volunteer ambulance drivers at the insistence of the ambulance drivers' union? The spirit of volunteering was thrown out the window. Hundreds of volunteers had been volunteering their time and were prepared to continue to do so, but they were tossed out.

This spirit of volunteering that the Attorney-General speaks of in relation to the matter of justices of the peace and special justices, in particular, is disingenuous to say the least. The fact is that this is a cost saving measure. It is a measure which might be dressed up as designed to take the workload off the shoulders of hardworking and highly paid magistrates. The Attorney-General mentions on a number of occasions the level of pay of magistrates (which is higher than that of the Premier, to clearly demonstrate the fact that what he wants to do is save money) and these persons who are willing having these burdens cast upon them. I know, from my own experience with the Royal Association of Justices and from speaking to many justices, that this is a task that many are happy to pursue, and we on this side of the chamber do not disparage them but encourage them to continue their community service.

The Attorney-General at around the same time was boasting of the fact that in this year's budget a further $450,000 to facilitate additional sittings by special justices and to enable further training in the court was provided. A further $450,000 sounds a reasonable sum of money, but he omitted to mention that it was over four years and that it is not at all a great contribution to the justice budget.

There are serious issues about the technical aspects of this bill. It is firstly proposed that the provisions relating to the constitution of a petty sessions division court are altered in a proposal that will enable a court constituted by a special justice to hear and determine uncontested applications of a class prescribed by the regulations. We on this side of the chamber do not like matters such as jurisdiction being defined or expanded by regulation; it is a sloppy practice. We would prefer to see those provisions in the legislation itself. My questions to the minister in relation to this aspect of the matter are: has consideration been given to what class will be prescribed in the regulations; what class of applications have been considered in this regard; and what recommendations have been made by the Chief Magistrate in relation to it?

The amendment in clause 4 relates to the jurisdiction of special justices sitting in the petty session division and will be expanded to include any charge of a prescribed nature, and we accept that a special justice is not permitted under these provisions to impose a term of imprisonment. But they are given jurisdiction to now hear a charge of a prescribed offence. 'Prescribed offence' is described as 'an offence in respect of which the maximum penalty does not exceed a fine of $2,500, but does include imprisonment'. There are many offences for which there is no maximum fine at all prescribed, but a maximum sentence of imprisonment is imposed. The section goes on to provide, 'that is prescribed by the regulations for the purposes of this definition'.

So, I ask, basically, the same question again in relation to the proposed prescription by regulations: what discussions have been had with the chief magistrate, or others, about which offences will be prescribed? What criteria is being adopted in relation to the selection of those offences? It may well be, and I imagine the answer will be, that a list has not yet been finalised, but surely there is a list of those offences which are being considered for this purpose. I would ask that the minister, in his response, provide details of these matters.

It has been suggested, in the other place, that the special justices, who were appointed only in recent years under amendments passed in 2004, are presently sitting only in the Elizabeth, Holden Hill and Coober Pedy courts. In other courts, the supervising, or managing, magistrate does not list cases before special justices. All that the special justices in those places are allocated to do is paperwork consideration of applications made, mainly under the Expiation of Offences Act.

Principally, the special justices are assessing form 51s, which is a form that a person makes to apply for the review of an enforcement order that is made under sections 13 and 14 of the Expiation of Offences Act, and also to consider form 48s, which are applications for review of a cancellation of a relief order under the Expiation of Offences Act. I understand that the special justices who are not allocated work on the bench are given the rather menial task of culling enforcement warrants.

I ask the minister to indicate: is it true that in those courts that I mentioned special justices are not being allocated to the bench? Is that so and, if so, for what reason? Will the minister confirm information that I have which suggests that there are presently some 65 special justices: 44 in the metropolitan area, 24 in the country and five who are allocated to the Youth Court? Whether or not those figures are true, I ask the minister to indicate whether it is proposed to recruit and appoint additional special justices to undertake the additional work which is being made available by reason of this bill.

Some of the publicity concerning this matter is that the Attorney has claimed that some 18,000 additional offences can be dealt with by special justices, which is, indeed, 20 per cent of the cases currently before the Magistrates Court. I ask the minister to indicate how that figure is calculated and what proportion of those cases fall into the various categories now permitted.

I also ask a question to be answered before we go into committee in relation to the current rate of remuneration for special justices. What is the pay rate for sitting fees paid to special justices, and is the claim correct that special justices who perform this important task are actually paid less than jurors, who similarly perform a service for the justice system?

We have today received a copy of a letter from the Law Society addressed to the Attorney-General. The letter is dated 17 November, and it refers to a letter from the Chief of Staff for the Attorney-General, Mr Peter Louca, which was seeking comment from the Law Society on this bill. The bill was introduced on 23 September, but Mr Louca did not get around to writing to the Law Society until 6 October, and the government has been pressing ahead to have the matter dealt with expeditiously. No explanation is given for the delay.

As has previously been mentioned, the Law Society is certainly acting in a voluntary manner when it makes comments on these bills, and I am not prepared to be critical of it. This letter was not previously before us, and it does raise a serious question not of principle but of detail. The letter states:

The Society supports, as a matter of principle, lessening the burden on the magistracy by expanding the jurisdiction of special justices. To that end, we support the bill, save and except for one aspect of it. The bill seeks to expand the jurisdiction of the Petty Sessions Division to include offences with a maximum penalty of imprisonment, although sentences of imprisonment may not be imposed.

So, in a technical sense, if there is a provision of the criminal law which provides for a maximum penalty of imprisonment for five years, a magistrate may consider that particular charge even though the magistrate himself would not be in a position to impose a term of imprisonment at all. The letter goes on to state:

It is these last mentioned offences that we consider should not be dealt with by special justices...Justices are not qualified or experienced to act as judicial officers. The proposed amendments will involve justices exercising judicial discretions. The fact that this already occurs to a minor extent is not a reason to expand it...One of the concerns with justices adjudicating upon matters that may attract imprisonment, in the context of not having the power to imprison, is that the justices are, for the first time in the Petty Sessions Division, required to determine the limits of their jurisdiction. Previously, those limits were determined for them by parliament (i.e., justices were only permitted to sentence for offences where a fine and licence disqualification was the maximum penalty).

With the increased jurisdiction, the justices must now determine whether imprisonment is a sentencing option before sentencing. We believe they, as lay people, should not be called upon to examine a judicial discretion of such magnitude. Whether a sentence of imprisonment is justified or required in a given case is a serious decision involving consideration of a multiple of complex matters that should be reserved for judicial officers...In addition, the proposed section allowing justices to hear offences attracting imprisonment creates a major anomaly and the real potential for fragmentation of matters within the criminal justice system. The anomaly is with the justices being invested with jurisdiction to determine liability on a matter which is too serious for the justices to sentence on (i.e., on those matters worthy of imprisonment). This situation does not occur at any other level of the criminal justice system.

We consider it to be of fundamental importance that an accused's liability for an offence worthy of imprisonment should be determined only by a judicial officer (ie, one having the jurisdiction to sentence him/her to imprisonment). By determining liability when imprisonment should or might not be imposed, the justices will necessarily (and inappropriately) be adjudicating upon serious matters.

If, after determining guilt, the justice considers that imprisonment is or might be appropriate, the matter should then be referred to a magistrate. This fragmentation of the process between liability and sentence is highly undesirable and unique. There are many reasons why the officer sentencing an offender should be the one who determines his/her guilt…

This provision may not achieve the efficiency savings it is hoped to. Indeed, the appeals, referrals and consequent delays may outweigh any savings…

We do not believe the consent of both parties to the justices' jurisdiction (ie, that a sentence of imprisonment is not appropriate) will overcome the concerns. Essentially, this is because the judicial discretion on the issue of imprisonment should not be left to the parties. Indeed, it is a fundamental principal of sentencing that the judicial officer's sentencing discretion is not fettered by the agreed attitude of both parties…

I here interpose that we very often hear complaints in this place and elsewhere, and in the public domain, about the fact that prosecution and defence counsel come to some agreement with which, for example, victims do not agree. We hear long and loud wailings from many quarters—the Attorney-General included—yet here we are being asked to support a system which, as the Law Society points out (and I must admit I had not realised) will be here created. The letter continues:

Licence disqualification is a significant penalty in that it greatly impacts on an individual's independence (and can significantly affect one's livelihood). Granted that justices currently have the power to disqualify, we are concerned that the Bill increases the seriousness of the licence disqualification offences that may be dealt with by justices by including those with imprisonment (albeit limited to a $2,500 fine). For the reasons outlined, we question the appropriateness of justices dealing with such matters…

Our recommendation, therefore, is that the Bill be amended to limit the jurisdiction of offences to those not including imprisonment as a penalty.

If that amendment is made, we consider that the Bill still goes some way towards enlarging jurisdiction of the justices and, thereby, alleviating the burden on the magistracy…

We have considered the Bill in the knowledge that justices can, in limited circumstances, determine matters involving imprisonment—where there are no magistrates available to constitute a court…In such instances, the same limitation of not being able to sentence to imprisonment applies to justices.

We maintain our views, notwithstanding the existing position, because the Bill seeks to enlarge the jurisdiction of the Petty Sessions Division exercisable solely by justices to include serious matters. That is a far different, and more concerning situation, than the present which only provides for a fall-back position in the event that a magistrate is not available. In practice, it is likely that a justice would do no more than the minimum required until a magistrate becomes available (ie, the justice would not determine the matter).

There are two other matters upon which we would like to comment/ make a suggestion…

The first relates to the matter I alluded to previously, namely, the fact that this jurisdiction can be extended by prescriptions in regulations. The Law Society's comment is, as follows:

We consider that the criminal jurisdiction of the Petty Sessions Division is not one which should be capable of expansion by regulation. The appropriate safeguards of legislative amendment should apply to it.

Finally, in relation to adjournment and interlocutory matters, it says:

…we believe that consideration could be given to reducing the workload of magistrates by enabling justices to deal with some adjournments and interlocutory processes.

That courteous and constructive letter would have landed on the Attorney-General's desk only today or yesterday. I think it is appropriate that there be put on the record a response to each of the concerns raised by the Law Society. I am glad to see that, contrary to claims made by the Attorney-General, the Law Society has not adopted a dog in the manger attitude. It is not out there to support the work of lawyers. It supports as a matter of principle lessening the burden on the magistracy, and I commend it for that, but I do believe that it is appropriate that a detailed response be placed on the record. With those comments, and subject to appropriate and timely responses being received, we support the bill in principle.

The Hon. D.G.E. HOOD (17:31): Family First supports this bill. It is a good initiative. We see it as perhaps foreshadowing future reform along these lines. I believe there is capacity for this legislation to go further, perhaps not this particular piece of legislation, but I think there is capacity for greater reform in our courts. The number of procedural matters that are caught up in the courts is extensive. Members will be aware that Family First introduced a bill two or three years ago which substantially freed up the courts and which allowed drivers who were driving unregistered and uninsured to be dealt with by expiation notices rather than the courts, as was then occurring, and that has saved substantial time in our courts.

A number of things can be done. To think that we face situations in our courts where people sometimes wait 12 months or even more for trial is absolutely inexcusable, and for that reason we wholeheartedly support the measures in this bill. In essence, this bill expands the operation of special justices within our magistrates courts. The current sections 7A and 9A of the Magistrates Court Act 1991 define the current scope of jurisdiction available to special justices. The current jurisdiction includes the power to hear petty session matters and any matters where a magistrate is unavailable, although they are not allowed to impose a sentence of imprisonment. Petty session matters are defined in the current section 9A to include 701 criminal law sentencing matters; they are the reconsideration and reduction in fines due to hardship, as well as any offences against the Road Traffic Act that do not carry a period of imprisonment and reviews of enforcement orders under section 14 of the Expiation of Offences Act 1996.

This bill expands the jurisdiction of special justices to hear and determine uncontested applications of a class prescribed by regulation. The definition of petty session matters is expanded to cover contested expiation notices, any offences that do not have a penalty exceeding $2,500 and offences which do have imprisonment attached to them but which are prescribed by regulation. This bill does allows special justices to hear imprisonable offences if those offences are declared by regulation.

I would like the minister to outline prior to concluding this bill the specific imprisonable offences likely to be declared under regulation as being able to be dealt with under this new scheme. I wonder also whether it is likely that special justices will be tasked with good behaviour appeals for drivers who have run out of demerit points, as I understand these often take up a good deal of Magistrates Court time.

Special justices are appointed under the Justices of the Peace Act 2005. They are lay people who are JPs and are not required to be legal practitioners, although they are required to attend a short TAFE SA training course. The role of special justice is technically voluntary, although I understand they are paid $25 a session or $50 a day to cover expenses. I think that is very low indeed. My view is that it should at least compensate them for their time, and that sort of money surely does not. In my view it should be of the order of at least double or even triple that to compensate people for their time. It has been pointed out elsewhere that this is well below the several hundred thousand dollars a year paid to magistrates, and obviously there is a substantial cost saving for taxpayers involved in these measures. That alone, I think, suggests that the bill is worthy of support. One wonders why we have for years been paying magistrates hundreds of thousands of dollars to do things that special justices can do for $25 a session.

I also have the impression that magistrates have several other fringe benefits available regarding motor vehicles and so forth. In fact, just recently when my parliamentary vehicle was changed over (from one vehicle to the next), I was informed by Fleet SA that I had no rights as the lessee of that vehicle to attempt to purchase it at the expiry of the lease. Even though I did not necessarily agree with it, I thought if that was the policy so be it. Then I was informed by the gentleman I was talking to that judges and magistrates do; that somehow they have special rights to be able to purchase their cars which is excluded from other members. Is that right?

An honourable member interjecting:

The Hon. D.G.E. HOOD: I am informed that federal members of parliament can, too. However, that is a matter for another day. Just to reiterate the point, one wonders why we are paying these magistrates a couple of hundred thousand dollars a year or more and giving them access to extensive special privileges for years and years when, in fact, now people are paid $25 a session or $50 a day and they are able to do the same job. It is nothing short of outrageous.

My general view is that special justices do a valuable and important job and, indeed, I myself am (as I am sure many other members of this chamber are) a registered JP, and it is a voluntary role that I would consider taking up at some stage in the future as a means of community service. The increased scope of the responsibilities will, I am sure, do much to decrease the caseload of magistrates generally and will therefore save taxpayers a small fortune in the medium term.

As I said at the outset, there is considerable scope—I see this really as almost a pilot program—to expand the scheme well beyond its current level of impact as proposed in this bill, and I indicate to honourable members that, should a bill come to this council to that effect, it will very likely enjoy Family First support.

Debate adjourned on motion of Hon. J.M. Gazzola.

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