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									ASSOCIATION OF AUSTRALIAN MAGISTRATES

THE ESTABLISHMENT OF THE ASSOCIATION The Association came into existence in June 1978 in the guise of the Australian Stipendiary Magistrates Association (ASMA). The purpose of the association was to enable magistrates of the various States and Territories of Australia to speak with a national voice, and to address matters of importance to the Australian magistracy; and, where appropriate, to institute national projects relevant to the magistracy and its development. In 1994 the Association changed its name to Association of Australian Magistrates. The reason for the change was that the majority of magistrates around Australia were designated as magistrates, and not stipendiary magistrates. That might have a ring of familiarity to members of the CMJA, as the imperatives of change also led to the name of the Commonwealth association being changed from the Commonwealth Magistrates Association to the Commonwealth Magistrates and Judges Association in 1988. The Association, which goes by the acronym AAM, has a long standing association with the CMJA, and has for many years been a member association of the CMJA. Elected representatives of both ASMA and AAM have served as Regional Vice Presidents (Pacific Ocean) of the Council of the CMJA over the years. AAM’s current representative is Michael Hill, who sends his apologies for being unable to attend this conference.

THE OBJECTS OF THE ASSOCIATION The current objects of the Association are to:   be the representative body of Australian Magistrates nationally and internationally; confer and liaise with, and if appropriate, to act in conjunction with all Chief Magistrates, the Judicial Conference of Australia, the Australian Institute of Judicial Administration or any other body with objects consistent with those of the Association; ensure the maintenance of a strong and independent judiciary as the third arm of government in Australia; promote and improve the quality of the judicial system in Australia; promote a better public understanding and appreciation of the role of the judiciary in the administration of justice;

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promote, foster and develop within the executive and legislative arms of government, and within the general community, an understanding of the importance of a strong and independent judiciary in Australia; promote and encourage continuing legal, social and cross cultural study and learning by all members; promote legal research in collaboration with any university or educational institution of similar standing including comparative jurisdictional analysis of courts exercising summary jurisdiction throughout Australia; and promote and exchange legal, educational, practical or professional information between members and other persons or bodies, nationally and internally.

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MEMBERSHIP QUALIFICATIONS A person is qualified to be a member of the Association if that person currently holds judicial office as a magistrate or stipendiary magistrate or equivalent judicial office of any State, Territory or within the Commonwealth of Australia. All persons who have held such office are also eligible for membership. The Association may admit as an associate member the spouse of any present, former or deceased member of the Association. A block application may be submitted to the Secretary of the Association by the secretary of an association, society or other body of magistrates of any State, Territory or the Commonwealth of Australia, and such application is treated as if each person referred to in the block had applied directly for membership of the Association. Any person who has rendered long and meritorious service to the Association may on account of that service, or for any other commendable reason, be elected a Life Member of the Association. The following persons may be nominated as Honorary Members by the Executive of the Association: (a) the Head of State of Australia; (b) the Chief Justice of the High Court of Australia; (c) the Chief Justice of the Federal Court of Australia; (d) the Chief Justice of the Supreme Court of any State or Territory of Australia;

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(e) the Attorney-General of the Commonwealth of Australia; (f) the Attorney-General of any State or Territory of Australia; and

(g) such other persons determined by the Members at General Meeting. There are currently 323 members. The total number of State and Territory magistrates in Australia is 540, which includes full time magistrates and part time and acting magistrates.

THE EXECUTIVE The Executive of the Association consists of : (a) the President; (b) the Senior Vice President; (c) six Vice Presidents; (d) honorary Secretary; (e) honorary Treasurer; and (f) the Past President (an ex officio member of the Executive). The Constitution provides that each State and Territory of Australia is to be represented on the Executive by either the President or a Vice President. The Secretary and Treasurer is usually a member from the same State or Territory as the President. Each member of the Executive holds office for a term of two years.

RECENT AND ONGOING ACTIVITIES OF THE ASSOCIATION The Association has been involved in many activities over the years in relation to the development of the magistracy, issues of judicial independence and judicial education, all in pursuit of its objectives. The following is a representative sample of those activities, most of which are ongoing.

Change of Judicial Title For many years the Association, in its two manifestations, has been advocating a change of title for magistrates – from “Magistrate” to “Judge”. The arguments favouring the change of title are as follows. The gradual judicialisation of the magistracy1 has resulted it becoming an integral part of the Australian judiciary,2 such that there is no logical basis for

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drawing a titular distinction between judicial officers of the lower courts (magistrates’ courts) and those of the intermediate and higher courts. Australian magistrates are judges in all but name.3 Judges and magistrates in Australia are subject to common standards of judicial conduct. They are also perceived by the general public to be judges. For those reasons magistrates should be formally recognised as judges. On the reverse side of the coin, the title of “magistrate” is anachronistic, and on account of its ideological association with a public service magistracy of a bygone age its continuing use has a tendency to compromise or otherwise affect the independence of the lower courts, as well as the collective independence and integrity of the judiciary as a whole. That is another compelling reason for the proposed change of title. The proposed change of title is not radical. There is, as members of the CMJA well know, international precedent for the proposed change of title; and the considerations that influenced the conferral of the title of “Judge” on magistrates in Canada and New Zealand have equal application to the Australian magistracy, and support an equivalent change of judicial title in Australia. Last year the JCA endorsed the proposal to change the title of magistrates to that of “Judge”. In April this year the Federal Court of Australia in Gregory Ronald Alfred and the Commissioner of Taxation SAD 110 of 2007 judicially recognised the status of magistrates as judges by unanimously holding that the applicant, a magistrate of the State of South Australia, was a “judge of a court of a State” within the meaning of section 7 of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) as at the commencement of that Act.4 The Association is in the process of harnessing this very significant support from the judiciary in its pursuit of the proposed change of title.

Challenge to the Constitutional Validity of Fiscal Legislation

In 1997 the Commonwealth introduced legislation which imposed a surcharge on the superannuation of magistrates. The matter is complicated, but reduced to basics the situation was that a judge of a court of a State of Australia who was a member of a “constitutionally protected superannuation fund” at the time the legislation came into force was exempt from the imposition of the surcharge. Furthermore, a judge of a court of a Territory who was appointed prior to the commencement of the legislation, although not a member of a protected fund, was likewise exempt. The Greg Clark case referred above resulted in a landmark decision. The effect of that decision is that State magistrates who were appointed prior to the commencement of the legislation, and who were at the time members of a protected fund, were held to be judges of a court of a State. Accordingly,

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those magistrates have been exempted from the imposition of the surcharge. A further effect of that decision was that magistrates of a Territory appointed prior to the commencement of the legislation were also held to be exempt on the basis that they were at the relevant time judges of a court of a Territory. The Association is in the process of obtaining legal advice on behalf of its members as to the prospects of success of mounting a constitutional, or otherwise legal, challenge to the imposition of the surcharge on the superannuation of magistrates who fall outside the purview of the Clark decision.

Responding to Public Attacks on Magistrates In June this year the Attorney General of South Australia launched a personal attack on a South Australia magistrate by criticising particular sentencing principles articulated by that magistrate. The JCA and AAM came to the defence of the magistrate in the form of a media release. The JCA led the way in pointing out that the proper role of judicial officers is to develop sentencing principles to guide them in the discharge of their duties, and that it is of fundamental importance that the debate about the administration of justice occur in an atmosphere which upholds the integrity of the rule of law: the launching of a personal attack on the judicial officer had the potential of bringing the administration of justice into disrepute. Those observations were fully endorsed by the Association

The Judicial Educative Connection with the National Judicial College of Australia The National Judicial College of Australia (NJCA) was formed in May 2002. The College was established to assist judicial officers to administer the law in a just, competent and speedy manner by offering them opportunities to    identify and adopt best professional practices; broaden and enhance their general and legal educational standards; participate in educational programs intended to broaden their understanding of the processes and consequences of change in our society; participate in educational programs intended to broaden their understanding of the extent and consequences of diversity in various aspects of society, and to help them acquire skills to deal with that diversity; undertake individual learning programs;

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develop their skills in management (including case management), conduct of trials and appeals, and judgment writing; develop other skills relevant to judicial office; participate in educational programs which will help judicial officers develop substantive and procedural law, thus shaping for the future the law and its administration; participate in educational programs which will help judicial officers maintain physical and mental health while exercising judicial office; participate in international conferences and programs regarding judicial education to promote the legal objects set out above; and manage and co-ordinate requests for assistance regarding judicial education from courts and agencies in Australia and in other countries.

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The College is funded by contributions from the Federal Government and some State and Territory governments. The Association had considerable input into the establishment of the NJCA, and continues to have a very close working relationship with the College. AAM regularly confers and liaises, in accordance with its objects, with the NJCA. Indeed, the Association has represented magistrates on the College’s Consultative Committee since the inception of the College, and continues to do so. That Committee performs an advisory role. It advises the Council of the College as to how it should meet the professional development needs of judicial officers – in particular magistrates – as well as giving advice as to the perceived quality and value of programs previously conducted by the College. The Committee also facilitates a good line of communication between the College and judicial officers.

The Development of a National Standard for Professional Development Like the JCA, AAM contributed to the development of a national standard for continuing professional development for judicial officers. This project was an initiative of the National Judicial College of Australia (NJCA) and conducted in association with the Australian Institute of Judicial Administration (AIJA).

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The Promotion and Support of Legal and Sociological Research In addition to its educative role, and consistent with another of its objects, AAM has promoted and supported legal and sociological research in relation to the magistracy and the various jurisdictions it exercises - in the form of the Magistrates Research Project. Australian magistrates’ courts are the focus of this national, multi-year, empirical research project. The project is being conducted by Professor Kathy Mack and Professor Roach Anleu of Flinders University, Adelaide, South Australia, in collaboration with all Australian magistrates and local courts and AAM. Financial support is provided by the Australian Research Council. Further financial and practical support is provided by AAM, all magistrates and local courts, and the Australian Institute of Judicial Administration, as well as Flinders University. The project, which is ongoing, has to date produced a valuable set of research findings, providing detailed data on the magistrates as a professional occupational group, as part of Australian society and the judiciary. Amongst other aspects, the Project has examined the everyday work of magistrates in terms of the nature of the work they perform, the skills required to carry out that work, their attitudes towards their work and the challenges and stresses their work presents. The results of the Research Project have produced a national picture of the magistracy and the operation of the courts over which magistrates preside. That research has important ramifications for the future development of the Australian magistracy – a matter in which all magistrates have a vested interest. The research has the potential to identify certain occupational aspects of the magistracy that may need to be remedied or enhanced in order to ensure “job satisfaction”, and to assist in the search for the most appropriate model of court governance in the lower courts of the judicial system in order to ensure a strong and independent judiciary. The Association’s Biennial Conferences The Association holds a conference every two years. The next conference is in Darwin 2010. AAM’s biennial conferences represent a core element of the Association’s contribution to the continuing judicial and legal education of magistrates. Not only are its conferences designed to meet the special requirements of magistrates, but they are an occasion that brings together magistrates from all around Australia in a convivial setting that is conducive to the exchange of shared professional and personal experiences on the bench, and which engenders a real sense of identity and camaraderie amongst magistrates.

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GENERAL OBSERVATIONS REGARDING THE ROLE OF AAM The objects of the Association are clearly within the purview of the role of a judicial association. The maintenance of a strong and independent judiciary as the third branch of government is an essential element of the rule of law, 5 and “hence of democratic governance”, as observed in the document prepared by the Judicial Conference of Australia. Being the peak representative body of magistrates, AAM is well placed to ensure the maintenance of an independent magistracy and its concomitant - the rule of law. This role is, of course, consistent with the separation of powers doctrine as it operates in Australia. It should be noted that the doctrine does not operate in a strict fashion in Australia, as under the Westminster system of government which prevails in Australia, there is no real separation of powers between the legislature and the executive.6 However, that structure does not detract from the separation of the judicial function from the other functions of government – and hence the existence of a separate judicial arm of government. Promoting a better understanding and appreciation of the role of the magistracy, as an integral part of the judiciary, in the administration of justice, as well as promoting, fostering and developing within the executive and legislative branches of government - and within the general community - an understanding of the importance of a strong and independent judiciary is again entirely consistent with the doctrine of the separation of powers. It is always important to keep firmly in mind that there is a symbiotic relationship between judicial independence and the separation of judicial power doctrine. Judicial independence is bolstered by the doctrine. 7 At the same time, as Sir Anthony Mason has said: The separation of judicial power is not only protection against the exercise of arbitrary power, but it also assists in maintaining the independence of the judiciary and contributes to public confidence in the administration of justice.8 It is equally important not to lose sight of the following observation made by the Chief Justice of New South Wales, Jim Spigelman: Judicial Independence is not a privilege of judges which we acquire as a perk of office. Judicial Independence is a fundamental right of citizens. It is one of the rights that is enshrined as a constitutional principle…Our society cannot be governed without an institutionalised arrangement for the independence of the judiciary.9 Consequently, AAM, like any other judicial association, has a vital role in ensuring the maintenance of judicial independence, not as an end in itself, as pointed out by Chief Justice Antonio Lamer of Canada, but as a prerequisite

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for maintaining “public confidence in the impartiality of the judiciary”.10 AAM has a key role to play in preserving the fundamental right of Australian citizens to a judiciary which is not only seen to be, but is in fact, separate from the other arms of government, and truly independent and impartial. These objectives are clearly intended to promote and improve the quality of the judicial system in Australia, which is a further important object of AAM. In a similar vein, the educational objects and pursuits of AAM are well within the domain of a judicial association, as they are directed at improving the quality of the judicial system; and that is achieved by continuously improving the quality of judicial officers according to the imperatives of change. As pointed out by Lawrence: The maintenance of professional standards within the magistracy is imperative. Magistrates over a period of time have maintained a very high level of professionalism. Every endeavour must be made to ensure that such levels are maintained with the assistance of an appropriate and effective education process .11 Maintaining the professionalism of the magistracy is essential to ensuring public confidence in the judiciary, particularly when the community is increasingly challenging “the accountability of the overall judicial process”.12 One of the important objects of AAM is its collaborative role, which entails conferring, liaising and acting in conjunction with the Judicial Conference of Australia and any other bodies with objects consistent with those of the Association. The plain fact is that the Australian magistracy is now an integral part of the Australian judiciary, and the concept of judicial independence applies as much to magistrates as it does to judges. Consequently, any issue of judicial independence that impacts upon any tier of the judiciary – whether it be the magistracy or the intermediate or higher courts - affects the entire judiciary. The judiciary needs to act in concert in order to ensure its collective institutional independence and integrity. It is against that backdrop that AAM and the JCA are working together to ensure a strong and independent judiciary. AAM endorses the view taken by the JCA that in appropriate cases, and in support of its objectives, it should respond to public criticism of and personal attacks on judicial officers, particularly by politicians. Often such attacks affect judicial independence or public confidence in the judiciary, or bring the administration of justice or the courts into disrepute. In such cases, it will be appropriate for “the judiciary to consider a public response”.13 The need for such a response has been succinctly put by the Chief Justice of South Australia: The reason is…that a response may enhance support for judicial independence and sustain public confidence, by putting forward information and arguments that otherwise will not be presented.14

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The recent defence of the South Australian magistrate by the JCA and AAM referred to earlier is an example of such a public response. Like the JCA, AAM has ventured into the area of judicial remuneration in circumstances where Commonwealth legislation has imposed a surcharge on magistrates’ superannuation, which may be contrary to law or constitutional principles. Active intervention in the sphere of judicial remuneration may well be justified in circumstances where the process for fixing remuneration is not independent of political influence, or there is an ability for governments to arbitrarily reduce the salaries of the judiciary or individual judicial officers. As Weinberg J said in NAALAS v Bradley (2001) 192 ALR 625 at 699 “the arrangements for judicial remuneration are obviously central to judicial independence”. As further stated in the International Bar Association, Code of Minimum Standards of Judicial Independence (1982),15 security of tenure in relation to salary has several aspects:    payment at a high enough level to ensure a high quality judiciary; a process for fixing remuneration which is itself independent of political influence; and an assurance that the remuneration will not be reduced during a judicial officer’s tenure.

Beyond these obvious instances calling for intervention, AAM does have a peripheral role to play in the area of remuneration. Although an integral part of the judiciary, the magistracy is the lowest paid branch of the judiciary and, arguably, not appropriately remunerated according to the vast jurisdictions it exercises, the overall judicial responsibilities it discharges and the sheer volume of judicial work it performs, and relative to the salary and terms and conditions of its colleagues in the higher courts. In addition, the remuneration and terms and conditions of magistrates varies from jurisdiction to jurisdiction – in some cases the differences are quite significant. AAM has a vital role to play in assisting particular magistracies in making submissions to their respective remuneration tribunals, particularly in relation to arguments based on relativity or parity. For sometime AAM has maintained a register of terms and conditions of magistrates on a State/Territory basis, which provides a very useful analysis of salary relativities. The information contained in that register is regularly up dated and expanded. In these changing times the role of a judicial association is fluid, but it is always necessary to strike the right balance between not going far enough and going too far. Dr John Lowndes President Association of Australian Magistrates

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The “judicialisation of the magistracy” refers to the process whereby the magistracy has gradually become separated from the executive arm of government and become part of the judiciary, and “increasingly associated with the mainstream court system” : see The Honourable Marilyn Warren, Chief Justice of the Supreme Court of Victoria, “The Independence of the Magistracy: Crossing Over to Judicialism” (2005) 7 TJR 293 at 301. 2 J Lowndes “The Australian Magistracy: From Justice of the Peace to Judges and Beyond” Part 11 (2000) 74 ALJ 592 at 593. See also J Lowndes “The Australian Magistracy: From Justices of the Peace to Judges and Beyond” Part 1 509 at 510; Chief Justice Warren, n 1 at 301. 3 I Pike and A Reidel “Epilogue” in H Golder High & Responsible Office: A History of the NSW Magistracy (1991 Sydney University Press), p 215 cited in Lowndes, n 2 at 592. 4 The superannuation aspect is discussed immediately below. 5 As pointed out by Campbell and Lee: “ The operation of the rule of law depends on a truly independent judiciary: see E Campbell and H.P. Lee The Australian Judiciary (Cambridge University Press 2001), p 51. 6 Campbell and Lee, n 5, p 37. 7 Campbell and Lee, n 5, p 49. 8 Sir Anthony Mason “ A New Perspective on Separation of Powers “ (1996) 82 Canberra Bulletin of Public Administration 1 at 4 cited in Campbell and Lee, n 5, p 49. 9 The Hon Jim Spigelman “ A Judge’s Lot to Protect Independence” , an address given at the annual dinner for the opening of the New South Wales Law Term, 30 January 2007. 10 A Lamer “The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change” (1996) 45 University of New Brunswick Law Journal 3 at 7 cited by Campbell and Lee, n 5 , p 51. 11 R Lawrence “Future Directions of the Australian Magistracy”, a paper delivered at the 9 th Biennial Australian Stipendiary Magistrates’ Association Conference, 13 June 1994, p 8. 12 Lawrence, n 11, p 8. 13 The Hon John Doyle, Chief Justice of South Australia “Should the Judges Speak Out”, a paper delivered at the Judicial Conference of Australia Uluru 7-9 April 2001, p 4. 14 The Hon John Doyle, n 13, p 4. 15 See S Shetreet and J Deschenes (eds), Judicial Independence: The Contemporary Debate (1985) 388, Articles 14,15 cited in K Mack and S Anleu “ The Security of Tenure of Australian Magistrates” [2006] MULR 13 at 11-12.

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