«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 ...»
It is no news to anyone that the question of “political appointments” to all courts, from the High Court down, remains thorny but unresolved. Although all courts from time to time receive unfortunate appointments due to political favouritism and patronage, when one considers the overall current quality of the NSW Local Court, most magistrates having been appointed from outside the court’s administration, the pessimism of the Petty Sessions Cassandras does not seem justified.
The Local Courts Act 1982 was Clarrie Briese’s triumph. To attain and savour it he first had to endure the blowtorch of Premier Neville Wran’s displeasure. It was unfortunate for him that, as the reform movement gained momentum, Briese became the pivotal figure in two of the great scandals or cause célèbres of Australian legal history – the disgracing of ex-Chairman of Magistrates, Murray Farquahar, following a Royal Commission, and the trials of Justice Lionel Murphy and Judge John Foord. This is not the place to explore those particular events. After Murphy’s ultimate acquittal, Wran bitterly attacked Briese with his characteristic forcefulness. Briese, supported by the Council for Civil Liberties, some branches of the fourth estate and various judges, refused to buckle under his pressure, thus demonstrating in a concrete fashion that the Local Court was truly an independent judicial body at last.
(The consequences of the Farquahar-Murphy scandals, with all their suggestions of corruption and back-door deals, were not without the occasional punctuations of absurdity. Many magistrates learnt the unwisdom of even being thought to have contact behind closed doors with police prosecutors (many of whom were also investigated and suspected of corruption at this time) and lawyers, shady or otherwise. On one occasion the prosecutor got up in court at the beginning of a day’s proceedings and asked a magistrate whether they could speak in chambers. The magistrate sternly refused to entertain the suggestion. The prosecutor insisted that it was important and that he had confidential information only for the magistrate. Again the magistrate refused to go off the bench for a private meeting. “If it’s important, you should tell me in open court, Sergeant,” he demanded. “All right, Your Worship,” replied the police officer, “your Mum rang to say you’ve left your lunch behind.”) The opening up of the closed shop has had the important consequence that experienced advocates now make up the majority of NSW magistrates. A majority of them are, appropriately, from a criminal law background. The bulk of work done in Local Courts is, of course, criminal (and quasi-criminal if that is a proper description of apprehended violence cases). Significantly, a large proportion of magistrates come from a Legal Aid background or worked as private solicitors or as barristers representing defendants. The perceived nexus between police and the magistracy has been broken for good. It used to be argued that the police prosecuting service ought be replaced by the DPP. Ideally, this is so, but the reality is that with the magistracy cut from its Petty Sessions past in a decisive way, the lack of independent prosecutors is far less hazardous to the practice of justice administration than in the times when the police and the magistrates made common cause in the name of efficiency of administration.
The appointment of practising lawyers, with experience in dealing with briefs of evidence and the rules of evidence, many of whom have had experience instructing counsel or acting as counsel in District Court and Supreme Court matters, has wrought, over years, an immeasurable but significant cultural change in the Local Courts. It is merely impressionistic, of course, but many lawyers used to say of some magistrates from a Petty Sessions background that they “never had a doubt”, that is, they always accepted prosecution evidence. It is my impression that the magistrates of NSW, including those with a background in courts administration, are now regarded by most practitioners as fair and competent. Of course, some will always be more competent than others but the overall standard is regarded as being as high, or higher, than it has ever been.
(Lest I give the false impression that I regard magistrates from a courts administration background as having lower standing in the magistracy than ex-litigators, I want to pick up the question of administration of justice. Until I was appointed it was not clear to me how highly skilled magistrates from courts administration backgrounds actually were. To conduct a list appeared, from the bar table, to be a relatively easy and, indeed, rather mindless process. Experience has taught me otherwise. To move large numbers of people and paper and offer a human face to each party is a highly under-rated skill. It is about as easy as riding a monocycle while juggling several different-sized and shaped flaming objects. To do so and to concentrate for a full day on each party’s case is an exhausting process. If I can now perform this kind of wizardry myself, it is only because I have been taught by some very able people who learnt their skills in the Petty Sessions Branch.14) Since Briese’s time, successive Chief Magistrates have built on the reforms he initiated.
When the Local Court was instituted all but four of the serving magistrates were reappointed. Thus it took some time for the doors of the closed shop to open fully.
Nevertheless, they are now.
The contrast is obvious when one compares the backgrounds of acting magistrates with the backgrounds of current tenured magistrates. Acting magistrates are almost entirely drawn from the ranks of retired magistrates. There are at any given time about tenured 135 magistrates serving in NSW. Of the approximately 24 acting magistrates, about 18 whom had courts administration backgrounds.
On my count about 40 current magistrates were appointed from courts administration or the NSW Attorney-General’s Department. Significantly, however, the last appointment of a Clerk of the Court to the magistracy was in 1998.15 Annual turnover is relatively high. Since late 1995, about 75 magistrates have been appointed. About six retirements are due or expected in the next 12 months, mostly of ex-courts administration magistrates. The next biggest cohort of magistrates consists of ex-Legal Aid Commission lawyers, of whom there are about 22. A majority of these have been appointed since 1995. About 8 came from other NSW Government departments including Aboriginal Affairs, Fair Trading, Industrial Relations, the Environmental Protection Agency and the Crown Solicitor’s Office. There are about 15 ex-barristers on the Local Court and about 20 magistrates who practised privately as solicitors. About seven came from the State DPP and four from the Commonwealth DPP. A small number of ex-police prosecutors have been appointed as magistrates. 16 A number of magistrates have come from other courts and tribunals – one magistrate from the WA Family Court; one Judicial Registrar from the Federal Court; one Judicial In particular I would like to mention ex-Deputy Chief Magistrate Charles Gilmore and ex-Magistrate Neil Milson.
15 Magistrate Brian Wilson, then Clerk of Gosford Local Court.
16 One resigned in the course of a Judicial Commission inquiry into his alleged misconduct. No further police prosecutors have been appointed since that time.
Registrar from the NSW Supreme Court; one Commissioner from the Workers Compensation Court; one from the Refugee Review Tribunal and one is currently Deputy President of the NSW Administrative Decisions Tribunal. One magistrate was a senior Army legal officer (he remains a member of the Army Reserve) and three were academics. One acting magistrate is also an ex-academic.17 Since the beginning of 1996, a gender imbalance in the magistracy has largely been rectified. When I conducted my little survey, I found that among the top 78 magistrates in order of seniority (which, except for the Chief Magistrate, Deputy Chief Magistrates, Senior Children’s Magistrate, Chairman of the Licensing Court, State Coroner and Chief Industrial Magistrate dates from the date of appointment), only eight were women.
These figures are even more dramatic when it is realised that one of these was Deputy Chief Magistrate Syme who was appointed in March 1996 and promoted over the heads of many magistrates senior to herself.18 The bottom half of the seniority list, however, looks very different. Of 66 names listed in the directory of magistrates, 34 are those of women. Again, a stark contrast is to be drawn with the list of acting magistrates: of the 24 only three are women.
While one form of imbalance has been addressed, there remains a question of ethnicity.
Patricia O’Shane is the only Aboriginal magistrate to have served on the court. As far as I am aware there are only four Jewish magistrates currently on the Local Court, although ex-Chief Magistrate David Landa is Jewish. Of the 130-odd names in the list, only 11 seem to suggest their owners come (however far back) from non-Anglo-Celtic backgrounds. Perhaps as the legal profession and, in particular the government legal services, absorbs more lawyers from a wide variety of backgrounds we shall start to see a more interesting ethnic mix on the Local Court than the rather homogeneous group now presiding.
Lest I be misrepresented as some sort of trendy, politically-correct, inner-city type, I do not suggest that anything but competence (in all its aspects) for the job should be given priority in selection for the magistracy. Nothing would be more likely to reduce the standing of the court and the magistracy, in my opinion, than the appointment of token representatives of minority groups. It is now a demonstrated fact that there are significant numbers of high-quality lawyers of various ethnic backgrounds practising in Sydney. In my view, most of the women appointed since 1996 have proven themselves to be excellent appointments and, without being too chivalrous about this, my own impression is that, as a group, they outshine the male appointments made in the same time. If this impression is correct, it is no doubt a demonstration of the claim often made by women that they have to be better than men to gain equal success. I do not doubt that as the young lawyers of Asian, Middle Eastern, southern and eastern European backgrounds start to ease into middle-age some of them will consider the contributions they can make as magistrates and will do so as excellently as women have done in recent years.
17 My informal survey is slightly out of date as it is based on a list which is now about six months old but it will serve to illustrate the point that the magistracy is no longer dominated by ex-courts administration members.
The penultimate Chief Magistrate was Patricia Staunton, another rapid riser. She was also appointed in
1996. She is now Deputy President of the NSW Industrial Commission.
2. Problem-oriented courts
The work of courts in relation to social change and social policy is distinctly unglamorous. Magistrates’ courts are not referred to as the “coal-face of the legal system” for nothing. By and large, we are constrained by the separation of powers from saying what we really think about most of the laws and policies we are required to apply and administer. Nevertheless, the courts get on with their jobs of trying to preserve and protect a civilisation based on the rule of law. Part of that responsibility is not to make things up as we go, not to act according to whim or fancy but, even if it sometimes hurts, to apply the laws the democratically-elected Parliament gives us to administer “without fear or favour, affection or ill-will”.
Although the phrase is not common parlance in Australia, magistrates’ courts are, in a real sense, “problem-oriented courts”. On any given day, a magistrate may deal with issues of domestic violence, environmental damage, alcoholism, misuse of drugs, mental illness, reckless driving, access to children, protection of children, workplace accidents and so on. In courts of first instance, no others come close to the dealing with the variety of matters and problems which may confront a magistrate. Magistrates are not only required to be jacks of all trades, they are expected to be masters of them all too.
Problem-oriented courts, however, are courts with a more specific brief than this. One definition is that they are courts “which attempt to use judicial authority to deal with the an offender’s underlying problems in conjunction with governmental, social and community agencies.”19 The distinguishing marks of a problem-oriented court are that it is interested primarily in problem-solving as opposed to dispute adjudication; in therapeutic outcomes as opposed to a legal outcome; the process is collaborative as opposed to adversarial; the processes emphasise needs and interests as opposed to rights; the judge is more of a coach than an arbitrator; the process is forward-looking rather than backward-looking, and there emphasises, for example, rehabilitation rather than retribution; the process is concerned therefore with planning rather than precedent;
and there is a wider than usual range of participants in the process. Commonsense rather than legalism prevails in a process which is informal rather than formal.20 The development of problem-oriented approaches has not been formally articulated in any forum of magistrates I have ever attended yet the concepts are immediately familiar.
According to Freiberg, they emerge from “therapeutic jurisprudence”, the study of the law’s potential for healing. Therapeutic jurisprudence has been described as seeking … to assess the therapeutic and counter-therapeutic consequences of law and how it is applied and to effect legal change designed to increase the former and decrease the latter. It is a mental health approach to law that uses the tools of the behavioural sciences to assess the law’s therapeutic impact, and when consistent with other important values, to reshape law and legal processes in ways that can improve the psychological functioning and emotional well-being of those affected.21 19 Berman & Feinblatt, ‘Problem-solving courts: a brief primer’ (2001) Law and Policy 125 cited by Freiberg, A, ‘Problem-oriented courts: innovative solutions to intractable problems?’ (2001) 11 J of Judicial Admin 8 at 9.
20 Freiberg, Ibid p10-11.
21 Winick, ‘Applying the Law Therapeutically in Domestic Violence Cases’ (2000) 69(1) UMKC Law Review 1 cited Freiberg, ibid, p11.