...extent the same ways as the tenure of judges of the higher courts. This disparity is especially marked in the processes and criteria for removal and suspension from office and in the lack of salary guarantees. Lesser protection for the magistracy is not justified by any relevant distinction between the courts. Those who appear before magistrates are entitled to a judicial officer who is accorded at least the same degree of independence--protected by appropriate mechanisms as other courts.]



CONTENTS I Introduction II Security of Tenure and Judicial Independence III Magistrates and Judicial Independence A Separation from the Public Service B Qualifications C Increasing Jurisdiction of Magistrates Courts IV Magistrates and Security of Tenure A Abolition of the Court as a Whole B Promotion C Retirement and Superannuation D Salary and Remuneration 1 Salary Levels 2 Remuneration Tribunals 3 Reduction in Remuneration E Removal from Office 1 The Higher Courts 2 The Magistracy F Suspension of Magistrates V Conclusion: Adequacy of Protection for Magistrates' Security of Tenure

I INTRODUCTION

Adequate security of tenure for judicial officers is essential to the independence and impartiality of Australia's courts. This article identifies significant inconsistencies in conditions of tenure between magistrates (1) and judges of the district, supreme and Commonwealth courts, (2) as well as between magistrates in different jurisdictions. Although magistrates are becoming more like judges of the higher courts in their functions and characteristics, this article demonstrates that the tenure of magistrates is not protected to the same extent or in the same ways as the tenure of judges of the higher courts, especially in the key areas of guaranteed remuneration, and procedures and standards for removal and suspension from office.

Following a brief introduction in Part II of the concepts of security of tenure and judicial independence, Part III of this article considers magistrates' judicial independence--reviewing the legislative changes which constituted magistrates courts (3) and separated magistrates from the public service, often with the express purpose of providing greater formal protection for the independence of Australian magistrates. Next, Part IV analyses the constitutional requirements for the protection of judicial independence and the implications of the different protections of security of tenure. This Part also considers a number of specific aspects of security of tenure, including abolition of the court as a whole, promotion, retirement and superannuation, salary and remuneration, and removal and suspension of magistrates. Each aspect is considered by comparing the protections available to magistrates with those applicable to the judges of the higher courts and then in light of the qualities which establish the minimum constitutional standards for judicial independence.

Although the High Court in North Australian Aboriginal Legal Aid Service Inc v Bradley (4) held that there is 'no single ideal model of judicial independence, personal or institutional', (5) the lesser protections for magistrates identified in this analysis are not justified by any relevant differences between the courts. Furthermore, some fall below minimum constitutional standards necessary to ensure the substance and appearance of 'an independent and impartial tribunal'. (6) These concerns are particularly acute in relation to the processes and criteria for removal of magistrates, the grounds and mechanisms for their suspension from office and the lack of salary guarantees. The contemporary context and the current judicial functions of magistrates courts require better protection for magistrates' security of tenure. This will provide greater assurance to the community that the impartiality of magistrates' decisions is fully supported by law.

II SECURITY OF TENURE AND JUDICIAL INDEPENDENCE

Judicial independence is a fundamental aspect of the rule of law in common law countries, since at least the 17th century in England, (7) and is also the subject of international norms and declarations. (8) Spigelman CJ has emphasised that 'courts perform a core function of government: the administration of justice according to law'. (9) The central, distinctive judicial function is 'independent, impartial ... adjudication'. (10) The independence of individual judicial officers enables impartial adjudication on the merits of each case and so protects parties appearing before the court and the legitimacy of the court system itself. (11)

The core elements of judicial independence are freedom from external control by the executive government and freedom from internal control by other judicial officers, including the Chief Justice, Chief Judge or Chief Magistrate. (12) The primary mechanism for protecting judicial independence is security of tenure, (13) which supports external and internal judicial independence. (14)

External judicial independence enables judicial officers to make decisions they regard as just according to law and fact, without being influenced by the state to reach a particular result. As Gleeson CJ recently pointed out:

It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assured with confidence to exercise authority without fear or favour. (15)

External judicial independence enhances the rule of law in several ways. In cases between citizens, it supports decision-making based on the facts established by the evidence and the legal arguments rather than 'external direction'. (16) When the court must decide disputes between citizens and government, independence from the government reduces the risk of apprehended or actual bias in favour of the government as a litigant. (17) External judicial independence also supports the rule of law by maintaining public confidence in the judiciary and the courts as institutions. 'A judicial officer ... who could be dismissed for making a decision of which the government disapproved, would be unlikely to command the confidence of the public'. (18)

Internal judicial independence is also a key mechanism in the rule of law. Just as executive direction of adjudication would be inconsistent with the rule of law, so would improper direction from the presiding judicial officer--or any other judicial officer. (19)

[T]he independence of the judiciary includes the independence of judges from one another. The Chief Justice of a court has no capacity to direct, or even influence, judges of the court in the discharge of their adjudicative powers and responsibility. (20)

Security of tenure promotes both internal and external judicial independence by limiting the ability of either the executive or the chief judicial officer to determine the conditions or terms of appointment of judicial officers. Security of tenure 'reinforces the independence of mind and action of judicial officers, essential to the proper discharge of their functions'. (21) This independence is essential for public confidence in the impartiality of courts. (22) However, magistrates in Australia do not enjoy the same security of tenure as judges of the higher courts. In some respects especially the lack of guaranteed remuneration and the procedures and standards for removal and suspension--their security of tenure falls below what is desirable and perhaps what is constitutionally required.

III MAGISTRATES AND JUDICIAL INDEPENDENCE

The entitlement of magistrates to any formal security of tenure has not always been recognised or accepted. (23) For example, in 1965, Windeyer J in Spratt v Hermes found it 'not surprising, nor ... contrary to tradition or principle' that magistrates in the Australian Capital Territory should hold office at the pleasure of the Crown. (24)

Magistrates and their courts have undergone substantial changes since 1965. (25) There has been an increasing professionalisation of magistrates as judicial officers. Magistrates are now separated from the public service; they are required to have legal practice qualifications and they hear and decide a wide variety of serious cases. Magistrates today are more like judges of the higher courts in their functions and characteristics and are hence deserving of similar protections for their independence, especially security of tenure. At the same time, as discussed more fully in this Part, magistrates courts have a number of distinctive features. These differences between the courts and their status do not justify any lesser protection for the magistrates and the public they serve; rather, they reinforce the need for clearer protections for magistrates' security of tenure.

A Separation from the Public Service

In the past, Australian magistrates were part of a public service department, promoted from positions as clerks of the court on the basis of merit and/or seniority. As clerks and magistrates they were subject to public service terms and conditions. (26) Now, magistrates in all Australian jurisdictions are separate from the public service, and magistrates courts are formally constituted under separate legislation. (27)

One factor leading to this change was a concern about the independence of magistrates who were also public servants. In Fingleton v Christian Ivanoff Pty Ltd, (28) the Supreme Court of South Australia upheld a magistrate's decision to disqualify himself from hearing a case on the ground of apprehended bias because the magistrate was a member of the same government department as the lawyer representing a party (also a government department) in the litigation. Wells and Sangster JJ commented:

There are strong grounds for maintaining that no person holding judicial office should be in the public service, more especially if he or she has to hear and determine prosecutions or civil causes in which the Crown or some instrumentality thereof is a party ... The principles of judicial independence apply just as forcibly to magistrates who, statistically, are seen to administer justice by a far greater number of people than are Supreme Court judges. (29)

However, the separation of magistrates from the public service was not universally regarded, even by magistrates, as a necessary or even positive change. (30) Later cases either disagreed with the view in Fingleton v Christian Ivanoff Pty Ltd about apprehended bias, (31) or concluded that the arrangement, while undesirable, was lawful under the existing statutory arrangements. (32) For example, the Supreme Court of Western Australia did not uphold a magistrate's disqualification of himself when the prosecutor was from another government department, on the basis that the connection was too tenuous to create a concern about bias. (33)

In New South Wales, departmental practice and convention were seen as providing sufficient protection for the independence of magistrates who were public servants. One judgment describes a departmental rule that magistrates could not be directed in their judicial functions as a sufficient guarantee of independence. (34) In Macrae v Attorney-General (NSW), Kirby P similarly asserted that magistrates in New South Wales

by convention, if not by law, enjoyed respect and protection for their judicial independence.... [This was a] status which they had long enjoyed as independent judicial officers, performing responsible tasks of a judicial character. (35)

Eventually, the potential for, or appearance of, executive interference with judicial officers created by the public service structure was recognised as inconsistent with the right of the public, served by magistrates and magistrates courts, to have their matters heard by a formally independent judiciary. The goal of providing at least some degree of judicial independence for magistrates is clearly expressed in the parliamentary debates in several states and territories in relation to legislation to constitute magistrates courts and separate magistrates from the public service. (36) For example, in South Australia the Attorney-General stated that the purpose of the Magistrates Bill 1983 (SA) was to 'place magistrates, in relation to the exercise of their judicial functions, in the same position as other members of the judiciary'. (37)

The move away from public service status was clearly intended as a mechanism to improve the formal status of magistrates as independent judicial officers. (38) However, separation from the public service was not the only change linked to increased judicial independence for magistrates. Changes to their qualifications for appointment and increases in their jurisdiction were also significant.

B Qualifications

Once magistrates were separated from the public service and its system of promotion, the question of qualifications for appointment needed further consideration. In all Australian jurisdictions the current minimum statutory qualification for appointment is admission as a barrister/solicitor/legal practitioner of one or more named jurisdictions, usually for five years (except in New South Wales, where no minimum time of admission is specified). (39) This formal requirement of admission to practice was sometimes introduced as part of the legislation to separate magistrates from the public service (in Queensland, South Australia and Victoria), though in some jurisdictions (the Australian Capital Territory, South Australia and Tasmania) the practice of appointing magistrates with legal practice qualifications and/or experience was well established. (40) In other jurisdictions, the appointment of magistrates from 'outside'--that is, from the legal profession--is quite recent. For example, the first such appointment in Queensland was in 1991, when the legislative changes were enacted. In some jurisdictions, there are still serving magistrates who were appointed under the former public service qualifications.

The minimum formal qualifications for appointment to the higher courts are very similar to those for magistrates, though a longer period of admission as a practitioner is sometimes required before appointment as a judge. (41) This slight difference in formal qualifications does not provide any basis for distinguishing between judges and magistrates as judicial officers; nor should it affect their respective entitlements to judicial independence.

C Increasing Jurisdiction of Magistrates Courts

A third factor linked to the need for recognition of the judicial independence of magistrates is the increased range and seriousness of the cases heard in magistrates courts. The legislation removing magistrates from the public service was sometimes accompanied, either immediately or shortly thereafter, by an increase in the civil and criminal jurisdictions of magistrates courts. (42) For example, in supporting the Victorian legislation to separate all magistrates from the public service, the opposition expressly referred to the increase in civil and criminal jurisdiction. (43) While...

NOTE: All illustrations and photos have been removed from this article.



More articles from Melbourne University Law Review
To Have but Not To Hold: A History of Attitudes to Marriage and Divorc..., August 01, 2006
Judicial activism: power without responsibility? No, appropriate activ..., August 01, 2006
Concern about judicial method.(Australia), August 01, 2006
Defending the unpopular down-under.(ethical practices of lawyers), August 01, 2006
Do businesses take compliance systems seriously? An empirical study of..., August 01, 2006

Looking for additional articles?
Search our database of over 3 million articles.

Looking for more in-depth information on this industry?
Search our complete database of Industry & Market reports by text, subject, publication name or publication date.

About Goliath
Whether you're looking for sales prospects, competitive information, company analysis or best practices in managing your organization, Goliath can help you meet your business needs.

Our extensive business information databases empower business professionals with both the breadth and depth of credible, authoritative information they need to support their business goals. Whether it be strategic planning, sales prospecting, company research or defining management best practices - Goliath is your leading source for accurate information.