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«A Magistrate’s view of the Law and Social Change Hugh Dillon, BA, LL.M (Syd) Magistrate, NSW Local Court 1. The reform of the NSW Magistracy as a ...»

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Australian Lawyers and Social Change Conference,

Australian National University 23 September 2004

A Magistrate’s view of the Law and Social Change

Hugh Dillon, BA, LL.M (Syd) Magistrate, NSW Local Court

1. The reform of the NSW Magistracy as a mirror of social change

Nicholas Hasluck tells the story of an English law lord who, having just heard that the

Parliament had passed a series of new statutes, expostulated, “Reform! Reform! Aren’t

things bad enough!” 1 What follows is, I hope, an answer to the question as applied to the NSW Local Court.

In my first year out of law school in 1981 I worked as a Judge’s Associate in the District Court. On a circuit somewhere in western NSW, I recall attending a morning tea given by the local profession for the judge at which a solicitor remarked to him, “Who would want to be a magistrate?” It was said with such contempt that it made a lasting impression on me. That kind of scorn for magistrates was commonplace in the legal profession when I first entered it. They were regarded not only as quasi-policemen (and they were almost all men) but as straighteners and punishers first and foremost. This was unfair to many magistrates but certainly numbered amongst that group of elite public servants were a number of who made a poor impression on most of the older lawyers I knew. It was reputed that there was even a notoriously erratic beak who carried around in his pocket a medical report certifying him to be sane.

Times have changed – the last time the Chief Magistrate advertised for expressions of interest in appointment to the Local Court, 500 lawyers applied. Presumably none of them were afraid of being regarded contemptuously by other practitioners.

In his recent autobiography, Chester Porter QC wrote2:

The improvement of the magisterial bench is one of the great success stories of Australian law today. In recent years as a QC I have felt humble in the presence of experienced magistrates, well versed in the law, and shrewd judges of fact… The jurisdiction of magistrates in criminal cases has been substantially enlarged in recent years, but there has been little to protest about this. By and large magisterial justice these days is on a high plane. There are many magistrates who would be capable judges, and at least two have been promoted to the District Court.3 There are numerous magistrates today, and of course the quality of justice varies with the individuals. However, it is fair to say that the greatest and least appreciated reform of the law since the war has been the standard of justice in the Local Courts. They are not called Police Courts so often now. They are independent of the police and on the whole the citizen can count on receiving a fair go.

Offcuts from a legal literary life UWA Press, Perth 1993 p101.

Walking on Water: a Life in the Law Random House, Sydney, 2003 at p19, 29-30.

3 In fact three in NSW, Judges Karpin, Williams and Price. Judge Price is also the current Chief Magistrate.

The Chief Justice of Tasmania is an ex-Magistrate.

The NSW magistracy is itself a mirror of legal and social change. It always has been to a greater or lesser degree but the transformation of the magistracy from a public service organisation perceived by the legal profession and defendants as having an almost papal confidence in the truth of police evidence, and a belief in severity as the best guardian of its own reputation for integrity, into a modern independent judiciary has enhanced the quality of the judiciary as a whole. I do not pretend that I have a great depth of scholarship in this field but in this section of the paper I want to explore, in an impressionistic fashion, the history of the reform of the magistracy and some of the factors that may have led to the reform Porter so perceptively detected.

It is worth reciting a little of the early history of the magistracy to gain an understanding of how it became a public service institution. Like most institutional histories, that of the magistracy is neither well-known, even within the legal profession, nor glamorous or exciting. Its importance lies in its essential ordinariness. When considering issues of law reform and social change there is an almost irresistible tendency in most commentators to identify the failings and shortcomings of a current state of affairs combined with a tendency barely to interrogate the historical record, or to do so only superficially. This can result in unfortunate consequences, the least damaging of which is that reformers merely invent solutions to already solved problems.

Mistakes of the past may, if we do not consult history, be repeated.4 For example, Truth in Sentencing, the big reform of 1988, merely reinvented a very old system. It resulted, as predicted by most informed commentators but denied by the so-called reformers, in an immediate and irreversible jump in the prison population of NSW, but it also had the unforeseen consequence of putting law-and-order politics in NSW thereafter on steroids.

It is virtually impossible, no matter what happens to crime rates in real terms, to dissuade tabloid reporters, talk-back radio commentators and the general public that there is no direct relationship between increasing the prison population and reduction of crime or the fear of crime.

Secondly, reformers who undertake their campaigns in historical ignorance may suffer from the hubris of enthusiasts and unfairly diminish the stature of previous reformers.

To adapt the cliché, the truth is that virtually all legal and social reform is built on the shoulders of previous giants in the field. Their experiences have much to tell us because most of the problems and issues faced by moderns have in fact been faced by, and dealt with by previous generations. An obvious example of such an issue is the use of narcotic drugs, a problem which arose well-before the first baby-boomer smoked his or her first joint or took a trip listening to Sgt Pepper’s Lonely Hearts Club Band. In some senses it is always true that plus ça change, plus ça meme chose. At the very least – but I suggest it is more than that – we can learn from the past what did not work.

The magistracy in NSW started off from a low base. Judge Greg Woods, in his fine history of the criminal law in NSW,5 described one of the early magistrates (later Judge Advocate), Richard Atkins, as “one of the most interesting judicial appointments in Australian history. A man who has both a serious drinking problem and power over life and death over his fellows is almost bound to be a problem…”6 That the most famous “Those who cannot remember the past are condemned to repeat it”. George Santayana, The Life of Reason.

5 Woods, GD A History of the Criminal Law in NSW: The Colonial ‘Period 1788-1900 Federation Press, Sydney, 2002.

6 Woods, ibid p28.

magistrate (an possibly judicial officer of any court) in NSW history is Samuel Marsden, a.k.a “the Flogging Parson” probably says all that needs to be said about the harshness of the administration of justice by magistrates in those days. It is interesting to reflect on the fact that many of the naval and army governors of the colony before self-government were, despite having been brought up in a culture of flogging, often fairer, more humane and just than their civilian legal administrators, and sometimes by a considerable margin.

In her estimable history of the NSW magistracy7, Hilary Golder demonstrates that the magistracy has, until recent times, been in a state of virtually permanent tension with the executive over questions of judicial independence and accountability. One of the most dogged issues plaguing the NSW magistracy from its very beginnings until recent times has been the question of recruitment. Atkins and Marsden are perfect illustrations of the difficulties early colonial administrators had in attracting suitable persons to the magistracy. Marsden and others were virtually a law unto themselves and governors struggled constantly to rein in their power and mitigate their abuses of power – usually by appointing men to congenial to Government House. The upshot was often that men such as John MacArthur and the “uniformed hucksters” of the NSW Corps would then, with breathtaking hypocrisy, accuse the unfortunate governor of “cronyism” and corrupt conduct.

As part of the gestation process, a dual system of magistracy developed in the colony. It was a system with some similarities to English cricket of a bygone era. On the one hand were the Gentlemen, the amateur magistrates who presided over courts in a lordly fashion. Golder comments acidly of these men, “the English system of honorary justices had not been healthily transplanted to NSW. Indeed, the colonial magistrates scarcely deserved the title ‘honorary’…”8 On the other hand were the professionals: a stipendiary magistracy. In 1810, for example, the first Police Magistrate was appointed. The appointee was D’Arcy Wentworth. There may never, at least in one respect, have been a more uniquely qualified appointment to a magistrate’s court in this country’s history. Wentworth had been tried four times at the Old Bailey for highway robbery before being finally acquitted and being sent by his poor but aristocratic family to NSW to practise (and I use the word loosely) medicine in the colony as the Assistant Surgeon.9 The real significance of Wentworth’s appointment, however, was that he was not only a judicial officer but simultaneously Superintendent of Police. Conveniently, he conducted court and had his police headquarters in his own house. In 1862, the control of police by magistrates was eliminated but the title Police Magistrate appears to have remain in formal use until 1947 and informally, among criminal law practitioners for a long time after that.

The demise of the Gentlemen came in the second half of the 19th century when they were effectively displaced not only by professional magistrates but by a growing army of other public servants. It was under Henry Parkes that the magistracy became the closed shop it remained until the last quarter of the 20th century. Although it had from time to time been suggested by Attorneys-General in the late 19th century, formal legal qualifications were not prescribed for magistrates until 1955.

High and Responsible Office, Sydney UP, Sydney, 1991.

Ibid, p38.

9 In the early colony, there seems to have bee n a strong medico-legal connection well before the development of an insurance industry of any note. Other doctors who performed magisterial duties were William Redfern and army surgeon Donald McLeod, the first Stipendiary Magistrate in Parramatta.

From the vantage point of the early 21st century, the incorporation of an important branch of the judiciary into the public service seems offensive to any concept of judicial independence and impartiality, but the course chosen by Parkes enabled the creation of a court which, at least superficially, rose above hot political fields of conflict generated by sectarianism, the temperance movement, the rise of the Labor Party and the union movement. “Governments throughout this period chose to rely on their own magistrates, who were represented as efficient and accountable”10 rather on the more erratic and predictably biased ministrations of the honorary justices.

It was in this climate that the magistracy as it was known throughout most of the 20th century was built. Golder noted that “efficiency was equated with speed and predictability [of decision-making], but some critics questioned the rapid dispatch of cases and argued that a dangerous congruence between police and magistrates was turning the lower courts into mere ‘manufactories of criminals.’”11 It seems to have been this culture of “efficiency” at the expense of traditional ideas of justice that gave lawyers as various as Chester Porter and Murray Gleeson a rather jaundiced view of the old-style “police courts”. It was easy to gain the impression that for many magistrates trained in that system the emphasis in the phrase the administration of justice lay squarely on the word administration.

The keys to the reforms in the late 20th century were, first, the removal of magistrates from the public service and, second, the breaking down of the doors of the closed shop.

Although the first was a necessity if the magistracy was to be regarded with appropriate respect as a judicial body, the second was just as important. Although a real advance had been made in 1955, when the Public Service Board required that all candidates for appointment to the magistracy have legal qualifications, this only tightened the grip of the Petty Sessions Branch elite on the magistracy. With the introduction of public service reform in NSW in 1979, a wedge was jammed fractionally into the previously impenetrable façade. In 1980, while offering an olive branch to the Petty Sessions Officers’ Association by assuring them that the majority of new magistrates would be appointed from the branch, Attorney-General Frank Walker nevertheless reserved the right to make outside appointments.12 The unsung hero of the modern magistracy is Clarrie Briese. He had become the Chairman of the Magistrates Bench in 1979 and was already of the view that it needed to attain full judicial independence. His fellow magistrates were not entirely convinced. In 1980, stipendiary magistrates supported a motion for a break from public service control only by a majority of two votes. (Briese presumably worked the numbers during following 12 months because, at the next year’s meeting, the argument was supported 78 to 1!) The principal argument against the devolution of the magistrates from the Petty Sessions Branch was that the magistracy would, in gaining judicial independence, paradoxically, become subject to the old evil of political patronage and manipulation as governments sought to select and appoint “suitable” candidates. The reformers, such as Briese, hoped that they would build into a new type of magistracy “an independent selection process which would balance the need for outside appointments with the claims of public service candidates.”13 Golder, op cit, p110.

Ibid, p110 citing Magistrate 6,7 (April 1911) at p219.

12 Ibid, p190.

13 Ibid, p192.

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