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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-01 Daily Xml
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MAGISTRATES COURT (SPECIAL JUSTICES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

(Continued from page 4138.)

The Hon. M. PARNELL (22:49): The quality of our justice system depends on many factors. One of those factors is the quality of our laws, and we are partly responsible for that in this place. Another factor is the quality of representation. However, an important factor is the quality of our judiciary, and that includes the personal attributes, the level of training and the level of experience of our judges and magistrates.

The bill before us seeks to provide for more responsibility to be put in the hands of special justices, who are people who, on the whole, do not have formal legal training. Their training consists primarily of a TAFE course and, of course, their general work experience. Clearly, there are some tasks performed by the courts that do not require a high level of experience, legal training or understanding, and it is appropriate for some of those tasks to be dealt with by people who do not necessarily have all the attributes of a full judicial officer.

It really is a case of horses for courses. There are minor matters that can be dealt with by lower level officers, and the analogy is the same: you do not need a brain surgeon to give an injection; there are other medical people, nurses especially, who are probably better at it than many doctors. What we are talking about here is the appropriate demarcation of responsibility between fully-fledged magistrates, who are judicial officers, and these so-called special justices.

Having said that I support the general thrust of the legislation, I have put an amendment on file. That amendment will come as no surprise to honourable members because it is the amendment we were asked to consider by the Law Society. I think that the Law Society has written to all members, or at least given all members a copy of its letter to the Attorney-General of 17 November, which 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.

It is that one aspect that is the subject of my amendment. This is probably best explained if I read a few more sentences from the Law Society's submission to the Attorney-General, as follows:

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.

The letter continues:

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 Session Division, required to determine the limits of their jurisdiction. Previously, those limits were determined for them by parliament (ie, 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 exercise a judicial discretion of such magnitude. Whether a sentence of imprisonment is justified or required in a given case is a serious decision involving a consideration of a multitude of complex matters that should be reserved for judicial officers.

The Law Society concludes its submission with its recommendation:

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 the jurisdiction of the justices and, thereby, alleviating the burden on the magistracy.

The amendment I have filed is a very simple one. It basically says that where the offence is one that is punishable by imprisonment, even though the special justices cannot order imprisonment themselves, those matters should still be dealt with by fully-fledged magistrates. With that one amendment on file, I support the second reading of the bill.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (22:54): I thank honourable members for their support for this bill and take the opportunity to answer questions put by honourable members in debate.

The Hon. Robert Lawson queried why justices of the peace, who are not in the process of becoming special justices, should have to pay to undertake the TAFE course for special justices. As the honourable member pointed out, the government does pay the cost of this course when a JP is in the process of being appointed as a special justice. The government does not pay the cost of the course if a person is not seeking to become a special justice, because the course is not required for ordinary JPs.

The honourable member has asked whether it is true that special justices in some regional courts do not hear cases but, rather, are allocated only paperwork such as Form 48 reviews of enforcement orders and Form 51 reviews of cancellation of relief orders. Both Form 48s and Form 51s are, in fact, applications to the Magistrates Court. They can be dealt with in the absence of the applicant, but determination of the applications is a judicial function.

The Courts Administration Authority advises that in 2008-09 special justices sat at the following locations: Adelaide Magistrates Court, Youth Court, Christies Beach Magistrates Court, Elizabeth Magistrates Court, Holden Hill Magistrates Court, Mount Gambier Magistrates Court, Mount Barker Magistrates Court, Murray Bridge Magistrates Court, Naracoorte Magistrates Court, Port Adelaide Magistrates Court, Port Augusta Magistrates Court and Whyalla Magistrates Court. Additional funding recently committed by the government to increase the use of special justices will be used to facilitate additional sittings by special justices, including in regional locations.

Honourable members have asked what imprisonable offences it is intended to prescribe under new section 9A(1)(b)(ii) of the Magistrates Court Act, inserted by this bill. It is intended that only straightforward offences, for which imprisonment is virtually never imposed, be prescribed—offences that the Chief Magistrate describes as 'the behavioural equivalent of driving offences'. Specifically, the Chief Magistrate has proposed, and it is intended, that the offence of disorderly or offensive conduct be prescribed.

The bill would also allow special justices to deal with prescribed uncontested applications, that is, applications consented to by the opposing party. The Chief Magistrate has proposed, and it is intended, to prescribe bail applications and applications for variation of bail. It is possible in both cases, where matters may be prescribed, that after consultation with the courts, police and other interested parties, additional types of offences or applications may be identified as appropriate for inclusion in the regulations.

The Hon. Robert Lawson asked for confirmation of the current numbers of special justices. I am advised that there are currently 64 special justices, with another one currently awaiting reappointment, and another eight in the process of being appointed. Of the 64 currently appointed, 42 are in the metropolitan area and 22 are in regional areas; 45 are proclaimed to sit in the Youth Court, but only five have indicated that they are available to sit in that court.

It is intended to recruit additional special justices as well as allow for more sittings by those already appointed. Justices of the Peace Services is taking a proactive approach to encouraging more JPs to apply to become special justices and is currently working with courts on targeted recruitment in areas of need, in particular in regional areas, following the government's recent commitment of additional funding for sittings by special justices.

The honourable member has also queried figures referred to by the Attorney-General in relation to how many additional offences special justices will be able to deal with under this legislation. The 18,000 cases, or 20 per cent of the Magistrates Court's criminal case load, were statistics provided by the Office of Crime Statistics and Research. These figures correspond to the number of cases heard by the Magistrates Court during 2008-09 where the only charges considered were offences with a maximum penalty of $2,500 and no imprisonment. This is the main area in which the bill increases the jurisdiction of special justices. Currently, specific jurisdiction is given to special justices in the petty sessions division of the court only for Road Traffic Act offences for which no penalty of imprisonment is fixed.

In 2008-09, 7,395 such offences were dealt with by the Magistrates Court. The bill also gives jurisdiction to special justices to deal with additional prescribed offences that have imprisonment as a penalty. As stated earlier, it is intended to prescribe the offence of disorderly conduct. In 2008-09, the Magistrates' Court dealt with 1,489 disorderly conduct cases, which would increase the number of cases that special justices could deal with under this legislation accordingly.

In response to comments about the amount of money that special justices receive per sitting, I confirm that special justices are paid $25 per session, or $50 per day if sitting for both sessions. This is to compensate them for out-of-pocket expenses. It is not a payment for sitting, remembering that special justices are in fact volunteers. The Hon. Dennis Hood commented on the disparity between what special justices and magistrates are paid, and the Hon. Ann Bressington suggested that the payment to special justices ought to be increased. Again I point out that special justices are volunteers, and so by definition are not paid a salary. The objective of the legislation is to allow special justices to deal with the straightforward cases, thereby freeing up the magistrates who have the required legal training and experience to deal with the complex matters before the court.

The difference between what special justices are paid and what jurors receive for jury service was also queried. It must be remembered that, although jurors provide a crucial service to the justice system and the community, they are not volunteers in the same sense as special justices who freely volunteer their time and, in the spirit of volunteering, do not expect payment for their services. I am advised that a juror who has not lost wages, incurred child-care costs or other loss as a result of jury duty is paid $20 per day, plus 64¢ per kilometre in travelling expenses, whereas a juror who has incurred such loss is entitled to up to $134 per day. The payment for out-of-pocket and travel expenses is comparable to what special justices receive as out-of-pocket expenses.

As for the training undertaken by special justices to prepare them for their role, the government agrees that this is key to the use of special justices in the court. In that respect I can advise that the special justices TAFE course is currently under review, with a view to beefing it up, and the Courts Administration Authority is also currently developing a standard program of induction and continuing legal education for special justices.

I turn now to addressing the comments made on this bill by the Law Society, as requested by the Hon. Robert Lawson. I join the honourable member in thanking the Law Society for its considered comments on the bill set out in a letter to the Attorney-General which was received by his office on 18 November 2009. The Law Society stated in its letter to the Attorney-General that 'the society supports as a matter of principle lessening the burden on the magistracy by expanding the jurisdiction of special justices.' However, the Law Society explained that it did not agree with the provisions in the bill that would allow special justices to be able to deal with prescribed offences that attract imprisonment, though the bill prohibits special justices imposing imprisonment.

The society set out in its letter various reasons for taking this view to which the Hon. Robert Lawson referred in his speech on the bill. Each of these points has been considered carefully; however, the government is not persuaded that this provision should be removed. In short, the Law Society argues that giving jurisdiction to special justices over offences that attract imprisonment while prohibiting special justices from imposing a sentence of imprisonment is something anomalous and unprecedented. This is not the case and I will respond to each of the society's points specifically.

The first concern of the Law Society was that giving special justices jurisdiction over prescribed offences attracting imprisonment requires special justices to exercise judicial discretion of too great a magnitude in determining whether a sentence of imprisonment is an option. However, a major role for special justices in exercising their jurisdiction is to determine sentence. Sentencing by its very nature gives rise to determining what the appropriate penalty should be and, in the case of a special justice, if they think imprisonment is appropriate, they will adjourn the matter to a magistrate for sentencing. This precise scenario is already contemplated under section 19 of the Criminal Law Sentencing Act which provides that, if a court constituted otherwise than by a magistrate is of the opinion that a sentence of imprisonment should be imposed in any particular case, it may remand the defendant to appear for sentence before a court constituted of a magistrate.

The ultimate decision about whether imprisonment should be imposed will be made by a magistrate upon referral from the special justice. The Law Society argued that giving special justices power to determine liability on a matter that is too serious to sentence on is an anomaly, and the fragmentation of the process between liability and sentence is undesirable and unique. However, giving power to determine a matter with a penalty that exceeds the limit set on sentencing by that judicial officer is not an anomaly or, indeed, something new or unique.

There is already a direct equivalent in the sentencing limits of magistrates. Magistrates have the power to deal with minor indictable offences, which are those with a maximum penalty of between two and five years imprisonment, notwithstanding that magistrates are restricted to imposing a maximum of two years imprisonment. This is contained in section 19 of the Criminal Law (Sentencing) Act. Where a magistrate is of the opinion that a sentence should be imposed that exceeds the Magistrates Court's sentencing limits, section 19 of the Criminal Law (Sentencing) Act provides for referral to the District Court for sentencing. For the benefit of members, I will recite section 19 of the Criminal Law (Sentencing) Act:

19—Limitations on sentencing powers of Magistrates Court.

(1) The Magistrates Court does not, unless it is constituted of a magistrate, have the power to impose a sentence of imprisonment.

(2) If the court, constituted otherwise than by a magistrate, is of the opinion that a sentence of imprisonment should be imposed in any particular case, it may remand the defendant to appear for sentence before the court constituted of a magistrate.

(3) The Magistrates Court does not have the power to impose.

(a) a sentence of imprisonment that exceeds two years; or

(b) a fine that exceeds $150,000.

(4) Subsection (3) applies whether the offence to which the sentence relates is a summary offence or a minor indictable offence.

(5) If the court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (3), the court may remand the defendant to appear for sentence before the District Court.

The Chief Magistrate is confident that processes will be in place to ensure that the court filters appropriate matters for listing before special justices. With this filtering process, the incidence of sentence referral should be minimised. The Law Society has argued that providing that special justices may deal with prescribed offences with the consent of the parties is not appropriate. The bill does not, however, require or make any reference to the parties' consent.

The society was concerned that the bill increases the seriousness of the licence disqualification offences that special justices may deal with by including those with imprisonment. There are certain offences under the Road Traffic Act and the Motor Vehicles Act for which imprisonment and licence disqualification are penalties (for example, driving under the influence), which could theoretically be prescribed as offences within the jurisdiction of special justices under section 9A(1)(b)(ii) of the Magistrates Court Act as amended by this bill.

The Chief Magistrate has not asked for these offences to be prescribed: she has proposed that special justices be permitted to deal with the offence of disorderly or offensive conduct. She has also stated that complex offences, such as those where different penalties apply for subsequent offences (for example, driving under the influence), would not be listed before special justices. The Law Society suggested in its letter to the Attorney-General that special justices be permitted to deal with some adjournments and interlocutory processes.

The bill in fact amends section 15 of the Magistrates Court Act at the request of the Chief Magistrate to clarify that special justices have jurisdiction to adjourn proceedings. Some interlocutory processes could potentially be described as uncontested applications under the existing bill provisions. This suggestion by the Law Society was put to the Chief Magistrate, and she responded that she did not consider that there was a need for further amendment at this time.

The society and the Hon. Robert Lawson were concerned that the jurisdiction of special justices should be determined by parliament and not by regulation. The regulations will be able to extend the jurisdiction of special justices only within the parameters allowable under the bill and in the context of the prohibition on special justices imposing a sentence of imprisonment. The regulations are subject to disallowance by parliament in any event. Ultimately, it needs to be remembered that special justices already have power to deal with any matter, including any offence, if there is no magistrate available, subject to the prohibition on imposing a sentence of imprisonment. Parliament has already seen fit to allow the court that broad latitude in listing matters before special justices.

I reiterate that the intention of this bill in allowing a broader range of minor offences and procedural matters to be dealt with by special justices is to free stipendiary magistrates to deal with more serious criminal offences, thereby improving outcomes for victims of crime, as well as increasing access to justice. I commend the bill to members.

Bill read a second time.


At 23:11 the council adjourned until Wednesday 2 December 2009 at 11:00.


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