COMMUNITY MAGISTRATES

  • Doug Graham
Attorney-General

Activity Room 2
Kelston Community Centre
Great North Road
Auckland

Thank you for the invitation to speak tonight and thank you to my colleague Marie Hasler for organising the meeting. I'm always happy to meet and talk with JPs and I value your input on issues which affect the smooth running of our Courts and the administration of justice.

Tonight's meeting is well-timed. You couldn't have foreseen when the arrangements were made last month that this week Cabinet would give the final approval, subject only to Budget consideration, to my plan to introduce magistrates to the District Court - a proposal which I've been working on for some time and one which I know a lot of JPs are interested in.

Workload of District Court
The workload of the District Court has in overall terms been steadily growing since 1990. The number of criminal jury trials committed to the District Court has grown from 1090 in 1990 to 2285 in 1996 - an increase of 110 per cent. In the same period summary cases have risen from 249,412 to 298,250 - up almost 20 per cent.

In the Family Court the number of substantive applications has grown from 14,927 in 1990 to 21, 296 last year - an increase of 86 per cent. This jurisdiction has recently been of increasing concern as the demands for speedy orders in cases involving domestic violence have placed stress on the Family Court.

In an attempt to optimise Judges' time, we've increased Registrars' powers to deal with pre-trial matters. These changes have resulted in a substantial amount of work transferring to Registrars, who now do around 30 per cent of remands and two-thirds of adjournments in the criminal courts.

Further extensions of Registrars' powers have been approved by Cabinet in the context of improving the enforcement of fines and reparations and legislation to authorise that will be introduced shortly. I'm now looking at other options to deal with further pre-trial matters and indeed deposition hearings themselves in particular.

At the same time, officials from the Ministry of Justice and the Department for Courts have been working on various proposals to make our Court structures even more efficient.

In 1995 I went to England to discuss Court structures with the Lord Chancellor's Department. As you are probably aware, England has always used JPs much more in the judicial process than we do here in NZ. Lay people, with no legal degree, get through a prodigious amount of work with the assistance of a qualified Registrar. Relatively speaking, the number of appeals from JPs are not substantial.

It seems sensible to me to relieve District Court Judges of some of the more minor offences. I've always found it somewhat quaint, but not terribly efficient, that one day (using the skills acquired over many years) a District Court Judge can be summing up to a jury in a rape trial and the next day fining someone for leaving his car abandoned on the street - a task most would say hardly requiring those skills.

Apart from better targeting the skills of District Court Judges there is another compelling reason for looking at how we handle minor cases. It seems to me desirable to ensure that the Courts are not too remote from the communities they serve. The Courts are part of our community and must be seen as such.

Senior, respected members of our community, who have a broad understanding of its social attributes and problems, should be involved in the judicial process so that the community is seen to be dealing with its own problems.

JPs have played their part on the bench with distinction and I've always felt, with appropriate training, the role of lay people in the justice system could be extended and that we should welcome a wide range of people to this role.

Cabinet has now endorsed this view and I can now tell you that these new appointments will be called Community Magistrates. Their introduction aims to:

Enhance community involvement in the Courts
Relieve the workload of the Court
Better target the skills of District Court Judges.
Jurisdiction of Community Magistrates
The Community Magistrates, usually sitting in pairs, will have jurisdiction in three principle areas:

First, they will over time take over the matters currently dealt with by JPs. As you are aware, this covers defended and undefended fine-only offences, such as careless driving, and also includes bail and remands on a wide variety of matters and jurisdiction over most deposition hearings.

Second, they will now deal with undefended cases, in which they will do the sentencing, where the penalty is up to and including 3 months imprisonment or a $5000 fine. In relation to these cases, they will be able to fine or impose a community-based sentence on the offender, but not to imprison. If they consider imprisonment may be suitable they will refer the matter to a Judge.
This is a significant jurisdiction for the Community Magistrates. It will cover sentencing in a wide range of offences including drink driving, driving without a licence, cannabis possession and disorderly behaviour. We expect that there will be around 70,000 cases each year in this jurisdiction.

Third, they will undertake fines enforcement. This involves dealing with offenders who have failed to pay their fines, ordering further enforcement action where possible, and resentencing to a community-based sentence where this is appropriate.
Appeals from Community Magistrates' decisions will go to a single District Court Judge in the first instance.

Appointment of Community Magistrates
Community Magistrates will be appointed by the Governor-General, on the advice of the Minister of Justice, after considering the recommendation of community panels comprising a sitting Magistrate, a Court Registrar, a representative of the local District Law Society and community representatives including a representative of local Maori.

The panels will consider the personal qualities, experience and skills of the candidates including their personal integrity, communication skills, ability to make unbiased decisions, a connection to the community, an awareness of its diversity and an awareness of Tikanga Maori.

These skills are possessed by a wide range of people. It should therefore be possible to recruit a diverse group. We expect them to sit 2 days a week at least in larger centres.

While, Community Magistrates need not be legally qualified, there will be no bar on legally qualified people applying provided they are not currently practising. I would expect newly retired lawyers would be attracted to the position and I would expect and encourage experienced JPs, particularly those of you who already sit on the bench, to apply. I also hope Maori, including Kaumatua, will seek appointment.

Community Magistrates will be judicial officers with the protections of judicial independence and protected tenure to ensure their decisions cannot be influenced by the threat of dismissal or discipline.

They may be dismissed only for neglect of duty, disability, bankruptcy or misconduct. They must retire at 68 and they will be subject to the Chief District Court Judge's power to roster judicial officers.

Community Magistrates will be trained first by correspondence course, then by face-to-face skills training. Initial training will include the basic legal system (including individual rights and the burden of proof), detailed pre-trial procedure sentencing, the procedure for defended hearings and an awareness of the role and implications of the Treaty of Waitangi.

In addition, it is expected that Community Magistrates will attend at least a day's in-service training each year. Further work will be required to develop a detailed curriculum. The NZ Law Society and the Chief District Court Judge have indicated their desire to be involved in this.

A Chief Community Magistrate will be appointed to assist with the appointment process, training and administration. The Chief District Court Judge will have overall authority because the Community Magistrates will be a part of the District Court and not a separate Court.

The proposal to introduce Community Magistrates has the objective of enhancing community involvement in the Justice system, so that the Courts are not the sole province of professionals. It is therefore planned that Community Magistrates would be able to sit in venues other than courthouses.

Further work will be necessary on the practical issues involved as the logistics of organising Court sittings outside of a courthouse are not simple. The Court needs to have access to the relevant files, to have adequate support staff and the necessary security. The courtroom must reflect the dignity and respect to which the judiciary is entitled.

I also believe it desirable for Community Magistrates to sit on marae. At the moment, District Court Judges sit on marae for sentencing if the accused and the marae request it, the victim agrees and it is consistent with the criminal law to do so. The administration of justice requires flexibility.

Because of the much wider jurisdiction and responsibilities of Community Magistrates, it is likely that some remuneration for their services will be appropriate. It will be payable on a per diem basis i.e. so much per sitting day. The rate has yet to be set but it is not envisaged that it will equate to a salary as such. Community Magistrates will still be regarded largely as providing a service to the community.

Next Steps
Drafting instructions will now be forwarded to Parliamentary Counsel so the appropriate changes can be made to give legislative authority to these decisions. This will mean that the first appointments will probably be made towards the end of 1998.

It is anticipated that these Community Magistrates will be introduced into District Courts on a gradual basis. Initially there will be a small number of Community Magistrates appointed in a few major centres. This initial period will enable us to see how the magistrates work in practice, and determine how best to organise their work as they are appointed in other places.

The advent of Community Magistrates is a major change. It will enable District Court Judges to apply their undoubted skills to more serious matters and help reduce the backlog that has developed. It will provide an efficient method of dealing with a range of offending where common sense, maturity and wisdom are the necessary qualities rather than an extensive knowledge of the law and the rules of evidence. It will ensure that respected members of communities can dispense justice within that community. In short, it is an important part of the Government's determination to provide a modern, efficient, fair and just judicial system.