LOCAL COURT BILL 2007
MISCELLANEOUS ACTS (LOCAL COURT) AMENDMENT BILL 2007
Agreement in Principle
Debate resumed from 13 November 2007.
Mr GREG SMITH
(Epping) [10.15 a.m.]: I speak on behalf of the Opposition on the Local Court Bill 2007 and the Miscellaneous Acts (Local Court) Amendment Bill 2007. The Opposition does not oppose the bills. The object of the principal bill is to replace the Local Courts constituted separately within New South Wales with a single Local Court, the sittings of which will be held at various locations within New South Wales. One wonders why this proposal has taken so long because the District Court has had similar changes for many years: there is only one District Court.
The bill also introduces changes to the qualifications of magistrates to ensure that a person eligible for appointment has been an Australian lawyer for at least five years or has held judicial office previously. This issue has been the subject of criticism previously with the appointment of certain magistrates, one being a research officer with the previous Attorney General who had been admitted as a lawyer for only six months although she had been a graduate for some years. Many experienced lawyers in this State have practised in the Local Courts, sometimes on a daily basis, and would be eligible for appointment as a magistrate and have put their names forward but have been rejected. One wonders why this bill does not propose a much more transparent method of selecting magistrates.
I note recently that this Government advertised for expressions of interest for a position in the District Court. It is now in vogue in the United Kingdom for an independent authority to seek expressions of interest from people who want to become judges, to conduct interviews, to carry out checks and produce an eligibility list for the Lord Chancellor so that he or she must appoint from that eligibility list. In recent years there has been much criticism in this State about judges and magistrates. When I recently called for transparency the Attorney General sought to take a cheap shot when he contrasted what I said with what the Commonwealth Attorney-General Phillip Ruddock had done in relation to appointment to the High Court.
Appointments to the High Court are quite different and I do not believe anyone would suggest a separate committee should determine them. However, considerable consultation regarding those appointments is undertaken with the various leaders of bar associations, other relevant groups and each State Attorney General. It was a cheap shot and, in a sense, the Attorney General ended up looking a bit foolish because two days later he received an expression of interest for the appointment of a District Court judge. Usually I do not comment on these things but, as there had been criticism about some appointments of his predecessor, particularly the appointment of one of his research officers, I believed it was appropriate to mention this aspect.
Schedule 1 to the bill maintains the many conditions attached to the appointment and conditions of office of magistrates. For the most part those conditions are consistent with current arrangements. The bill does not include an oath of office for magistrates, as specified in section 16 of the Local Courts Act. However, it appears that section 9 of the Oaths Act would fulfil that necessity as it states, "The oath of allegiance and the judicial oath shall be tendered to and taken by District Court judges, magistrates and other judicial officers who are required by order of the Governor to take the same." It would be a tragedy if judges or magistrates did not have to take some sort of oath or affirmation of office.
The bill also does not contain a provision for the Chief Magistrate to provide periodic reports, as stated in section 27 of the Local Courts Act 1982. However, reporting mechanisms remain requiring the Chief Magistrate to report with the Annual Courts Review and the national report on government services. The Opposition has been advised by the Attorney General's office that it does not believe the section 27 powers match the data needs of the Attorney General and there remains power for the Attorney General to request information on a specific basis. These provisions are the same as those contained in legislation for District and Supreme courts. No doubt considerable correspondence and communication arises between the Attorney General's office and the various courts.
On occasions the Opposition has been critical of cutbacks in those courts that resulted in the Court of Criminal Appeal Registry being operated by insufficiently experienced staff. This led to the strange position in the Janine Balding case with a grant of special leave for appeal to the High Court because a staple was not securing the indictment and the orders of the Court of Criminal Appeal to other documents. Thankfully, that appeal ultimately was unsuccessful. The Folbigg case, which again was before the Court of Criminal Appeal yesterday, referred to a similar problem of attaching necessary documents so as to perfect the judgment. As I understand, this problem allowed an opening for Mrs Folbigg to add a new ground of appeal. We are assured that the new rules in this bill resolve this anomaly. We hope that with adequate staffing in vital court offices the court system cannot be cut back like some minor department that no longer has much use.
The court system is one of the essential aspects of the State Government and must be given full support, as must the prosecuting and public defending agencies and legal aid funding. This idea of cutting back essential services—dumbing down—has to stop. It certainly will stop when we are elected to government. Changes to the Local Court committee ensure that barristers and solicitors are appointed by their respective professional bodies. No longer is there provision for representation from the Director of Public Prosecutions and the Legal Aid Commission. It appears that now there is one committee for both civil and criminal matters instead of separate committees. I am not sure whether the Director of Public Prosecutions and Legal Aid Commission were consulted concerning those changes or asked their views on the matter. At this stage I have not been able to ascertain that information.
The bill maintains the current jurisdictional limits in civil jurisdiction and does nothing to amend matters that come before the Local Court in the criminal jurisdiction. As the Local Court will become one entity, parties can institute proceedings in and seek information from any office of that court or could have the matter moved to another Local Court, a situation that is not easily realised. Transferring matters from a country court to another country court or to the city involved making application to the court and involved a monetary cost for the people involved. Changes that streamline accessibility for litigants to the courts must be commended.
The Miscellaneous Acts (Local Court) Amendment Bill will update references in other Acts in accordance with the provisions of the proposed Local Court Act. It appears that the changes instituting just one Local Court across the State will provide a streamlined court and registry system throughout New South Wales. The changes are long overdue. The Opposition does not oppose this legislation.
Mr ROB STOKES
(Pittwater) [10.25 a.m.]: The object of the Local Court Bill 2007 is to replace the separate local courts within New South Wales with a single Local Court. Sittings of this single court of course will continue throughout the many beautiful courthouses in regional New South Wales and Sydney. Specifically, the bill repeals the Local Courts Act 1982 and purports to standardise provisions for the appointment of magistrates. While current magistrates will continue to hold office under this new legislation, the bill seeks to lift the qualifications for appointment as a magistrate for new holders of that office. I shall focus on this particular part of the bill.
This is long overdue reform. Clear evidence is dispensed at all New South Wales local courts that some magistrates have not always demonstrated appropriate knowledge of the law or experience of its application. I am not seeking to dwell on the circumstances of some magisterial failings that I have seen firsthand or been informed of through my office. I am sure all members of this place have evidence or stories of some shortcomings in Local Court justice, most of which has nothing to do with the quality of magistrates, and most do a terrific job, but more to do with the resources allocated to the New South Wales justice system.
Perhaps the single most important institution of our democratic system is an independent, impartial and experienced judiciary. It is a core responsibility of the Government to ensure that the judiciary has appropriate resources and that people appointed as magistrates are of the highest possible standard and calibre. That is vital in ensuring a quality justice system, particularly at the Local Court level where the vast bulk of court work is conducted in New South Wales. I am pleased that this bill, specifically clause 13 (2), seeks to ensure that to be appointed as a magistrate a candidate must be an Australian lawyer of at least five years standing or have been a judicial officer of an Australian court.
However, one area of this bill that might be improved is to standardise the appointment criteria for New South Wales judicial officers. While this reform is long overdue and reflects lifting the appointment criteria for magistrates, I note the District Court and Supreme Court Acts both require that to be eligible for appointment as a judicial officer one must have seven years' experience as an Australian lawyer or otherwise hold office as a judge or judicial officer in an Australian court. I do not see why the qualifications for appointment as a magistrate should be any lower than for appointment as a Supreme Court or District Court judge. Surely, all judicial officers should be of the same high standard. That is a very important step in ensuring a quality justice system.
Mr BARRY COLLIER
(Miranda—Parliamentary Secretary) [10.30 a.m.], in reply: I thank the members for Epping and Pittwater for their contributions to the debate and note that the Opposition does not oppose the bill. The Local Court Bill 2007 will replace the separately constituted local courts in New South Wales with the Local Court of New South Wales, which will sit at various locations across the State. This change will assist court and registry services to operate more effectively. A party will be able to make inquiries about his or her proceedings at any registry instead of having to contact the registry at which the matter is to be heard. Civil proceedings will not have to be formally transferred between the local courts. Instead, the court will be able to make an order that proceedings be dealt with at another location. The cognate miscellaneous bill—the Local Court Amendment Bill 2007—will make necessary consequential amendments to a large number of Acts and regulations as a result of the creation of the Local Court of New South Wales.
I will respond to some of the issues raised by the members for Epping and Pittwater. The member for Epping asked why this measure has taken so long. This reform was stimulated by the JusticeLink initiative, which creates a computerised network between New South Wales courts that will be more easily managed through a central Local Court structure rather than having a large number of distinct local courts as was the case previously. As the finalisation of JusticeLink approaches it is appropriate that the structure of courts be reformed.
It is not appropriate for the Attorney General to comment on former appointments, and the changes to the qualifications for appointment as a magistrate align New South Wales' requirements with those in other Australian jurisdictions. That partly answers the questions raised by the member for Pittwater. The Attorney General is aware of the calls for greater transparency and accountability in the judicial appointment process. He has directed his department to advertise judicial and tribunal vacancies on Lawlink, the departmental website. Earlier this year advertisements for expressions of interest in appointment were placed for magistrates, and more recently advertisements were placed for District Court judges. After a position is advertised, a register of expressions of interest is created and, when vacancies arise, the register is examined. This has resulted in magistrates being appointed from the ranks of solicitors and barristers from private practice, government and academia.
Of course, the Governor appoints judicial officers in New South Wales. The Governor usually makes such appointments on the recommendation of the Attorney General following endorsement by Cabinet. However, before making any recommendation to the Governor, the Attorney's practice is to consult with the head of the jurisdiction concerned. The President of the Bar Association and the President of the Law Society, as well as other people with a legitimate interest in the process are also consulted. When making nominations to the Governor, the Attorney remains mindful of the pivotal role that judges and magistrates play in the justice system. Nominees for judicial office must have superior legal ability, personal character and integrity. They also require technical and management skills and must be sensitive to the needs and expectations of an increasingly diverse society.
The member for Epping raised issues about sections 16 and 27 being taken across. Section 16 of the Local Courts Act was not carried over to the Local Court Bill because it is obsolete. The Oaths Act 1900 already provides for a magistrate to take an oath of allegiance and the judicial oath when required to do so by order of the Government. Once the Executive Council has approved the appointment of a magistrate, the magistrate is required to take the oath of allegiance and judicial oath before he or she begins to perform judicial duties.
Section 27 of the Local Courts Act requires the Chief Magistrate to submit periodic reports as directed by the Attorney. The section was not carried over into the Local Court Bill because, again, it is obsolete. The Attorney has not had to rely on the section to get information from local courts. Moreover, the section does not require the Chief Magistrate to provide as much operational information as the Attorney may require or the Chief Magistrate already provides to the Attorney and other areas of government. For example, local courts provide the department with information as part of the budget process. Local courts also provide the department with information that is sent on to the Productivity Commission to assist with the preparation of the annual report on government services. Local courts also publish an annual review, which contains a significant amount of operational information.
Concerns were also expressed about the requirement in section 27 for the Chief Magistrate to provide information about any matters relating to discipline that have arisen and that may have affected or may affect the availability of magistrates or the disposal of business by courts. This requirement may be at odds with the Chief Magistrate's obligation not to disclose information under section 37 of the Judicial Officers Act 1986.
The member for Epping raised the Folbigg and Balding cases. It is correct that the rules have been amended to address the problem concerning the attachment of the indictment to the court file. Division 6 of the bill sets out the rules of the court and the practice notes, and clause 25 (4) states:
(4) The Rule Committee, when exercising its functions in respect of matters relating to the jurisdiction referred to in section 9 (c), is to have two additional members, being a person appointed by the Chief Magistrate on the nomination of the Director of Public Prosecutions and a person appointed by the Chief Magistrate on the nomination of the Legal Aid Commission.
I think the concerns of the member for Epping in that regard have been put to rest. The member for Pittwater raised qualifications. The insistence of five years qualification denotes the Government's commitment to the appointment of high quality magistrates. If the member or his constituents have concerns about the performance of a particular magistrate, it is always open to them to raise it with the Judicial Commission. If they have concerns about a particular case, it is also always open in the normal course of events for the person concerned to appeal to the District Court, usually taking the advice of their legal counsel. The amendments standardise the qualifications required of magistrates with those required in local courts across Australia. This bill makes important and significant reforms to the Local Courts Act and courts administration. It will assist the court and registry services to operate more effectively and I commend it to the House.
Question—That these bills be now agreed to in principle—put and resolved in the affirmative.
Motion agreed to.
Bills agreed to in principle.
Passing of the Bills
Bills declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bills.