The Security of Tenure of Australian Magistrates
Mack, Kathy, Anleu, Sharyn Roach, Melbourne University Law Review
[Security of judicial tenure is essential for the independence and impartiality of Australia's courts. Although magistrates and their courts deal with over 90 per cent of all civil and criminal matters resolved in Australian courts, 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. 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
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. …