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MAGISTRATES COURT BILL 2003
Introduction and First Reading

Bill introduced, on motion by Mr J.A. McGinty (Attorney General), and read a first time.

Second Reading

MR J.A. McGINTY (Fremantle - Attorney General) [4.40 pm]: On behalf of the State Government and the people of Western Australia, I have much pleasure in moving -

That the Bill be now read a second time.

This Bill is the foundation of the most extensive legislative reforms to this State’s lower court structure and procedures since the enactment of the Justices Act 1902 and the Local Courts Act 1904. These reforms will be implemented by this Bill and six other Bills, which I will introduce today. These Bills will modernise this State’s lower court system by creating a new Magistrates Court. In doing so, the Bills implement 221 recommendations of the WA Law Reform Commission. This represents the most comprehensive implementation, both quantitatively and qualitatively, of law reform recommendations in this State’s history. Given the magnitude and significance of this lower court legislative reform package, the Government has decided to now introduce all seven Bills, together with the necessary explanatory information. This will enable full and informed public debate on this proposal. Consequently, all members will be able to consider public comments on the Bills and, therefore, to participate in a thorough and considered parliamentary debate during the first session in 2004. This Magistrates Court reform package will -

establish a new Magistrates Court - amalgamating Courts of Petty Sessions, the Local Court and the Small Claims Tribunal;
carry out 221 WA Law Reform Commission recommendations; and

create a unified civil judgment enforcement system, including a wider choice of civil enforcement options, notably the ability of judgment creditors to garnishee wages of judgment debtors.

This reform package will be complemented by further legislation carrying out criminal law reforms to the new Magistrates Court. These changes will be introduced in 2004.
New Magistrates Court - Jurisdiction: The Magistrates Court will have civil and criminal jurisdiction. The civil jurisdiction will increase from $25 000 to a maximum of $50 000 upon proclamation of the Magistrates Court Bill. Subsequently, on 1 January 2009 it will rise to $75 000. Importantly, within the civil jurisdiction of the Magistrates Court there will be both a general civil jurisdiction with an upper limit of $50 000 and a minor case jurisdiction for claims up to $7 500 on proclamation and rising to $10 000 on 1 January 2009. This minor case jurisdiction will replace the Small Claims Tribunal and the Local Court’s small disputes division which currently have jurisdictional limits of $6 000 and $3 000 respectively. Correspondingly, the District Court civil jurisdiction will rise from a maximum of $250 000 to $500 000 upon proclamation and further rise to $750 000 on 1 January 2009. Initially, the Magistrates Court will have the same criminal jurisdiction as is currently exercised by the Court of Petty Sessions. However, as I have already indicated, the criminal law work of the court will be the subject of reforms to be introduced next year.

Minor cases of less than $7 500: There will be a new procedure dealing with minor cases involving disputes up to $7 500. Such minor cases will encompass those cases that are currently heard in either the small disputes division of the Local Court or the Small Claims Tribunal. These reforms will enable a claimant to elect to proceed in either the minor cases procedure, where parties will not be represented by lawyers, or the general procedure, where parties will have the option to engage a lawyer. Significantly, in all matters under $7 500, parties will not be able to recover their solicitor’s costs of the action. A party to an action in the minor cases procedure may apply to transfer the matter to the general procedure, where representation is allowed.

Specialist Courts: Under these reforms, the Chief Magistrate will be able to establish divisions of the court to deal with specific classes of offenders. Prominent examples might well be the establishment of a drug court and family violence court. Therefore, if the Chief Magistrate considers that the interest of these offenders or the community warrants the offenders being dealt with separately from other offenders, such courts can be created. In such a way, innovative sentencing and court procedures can be used to address underlying causes of offending behaviour.

Debt Recovery Procedure: The reforms will provide Western Australians with a unified civil judgment enforcement system providing uniform enforcement procedures through the Magistrates, District and Supreme Courts and a wider choice of enforcement options for judgment creditors that will include a significantly improved garnishee system. The garnishee system will have two important aspects; firstly, the appropriation of part of a debtor’s earnings. However, this will not be able to exceed 10 per cent of those earnings. This limit will enable some payment of the judgment debt to the judgment creditor, while also giving some income protection to the judgment debtor to protect them from undue hardship. Secondly, the judgment creditor will have some access to moneys owed by a third party, such as a bank or financial institution, to a judgment debtor. These changes are designed to meet the problems experienced by thousands of Western Australians each year when they obtain a court order for recovery of a debt but remain unable to actually recover the debt owed to them.

New Form of Address for Magistrates: Presently, magistrates when addressed in court are referred to as “Your Worship”. To assist litigants and others appearing in our state courts it is proposed that, while in court, magistrates will be referred to as “Your Honour”. Consequently, there will be a uniform mode of address to presiding officers in the Magistrates, Children’s, District, Supreme and Family Courts.

Permanent Magistrates: Permanent magistrates will be able to be appointed on a full-time or part-time basis. Whether they are appointed on a full-time or part-time basis, that appointment will be until the magistrate attains 65 years of age, unless removed earlier. The significance of this reform is that such an arrangement will, for example, allow the appointment of two part-time permanent magistrates to fill one full-time permanent vacancy. This change will not only recognise the reality of modern employment, but also ensure the best available candidates can be appointed as magistrates on terms that suit their circumstances.

Acting Magistrates: The new legislation will allow acting magistrates to be appointed for a specified limited period. This will enable such magistrates to assist the court to deal with heavy court workloads. These magistrates can be appointed to work full time or part time. For the assistance and information of members, I table a copy of the 221 WA Law Reform Commission recommendations, which will be implemented by these reforms.

[See paper No 1924.]

Mr J.A. McGINTY: Given this background to the Magistrates Court reform package, it is important to outline the essential features of the Magistrates Court Bill 2003. Every year, thousands of Western Australians come into contact with and use the lower courts. Approximately 84 000 defendants appear before Courts of Petty Sessions each year. In addition, approximately 43 000 new civil claims are lodged in the Local Court every year. The Bill establishes the new Magistrates Court of Western Australia. It contains the necessary constitutional and jurisdictional provisions for the court to function. These were previously in the Local Courts Act 1904, Small Claims Tribunal Act 1974 and the Justices Act 1902. As a direct consequence of the Bill, the Stipendiary Magistrates Act 1957 and the Magisterial Districts Act 1886 will be repealed. The new court will eliminate the current fragmented lower court structure and the resulting confusion and inefficiency. This will be achieved by amalgamating the civil and criminal summary courts and the Small Claims Tribunal.

Further, the role and position of magistrates attached to the Family Court of Western Australia will be clarified by ensuring that those magistrates are responsible to the Chief Judge of the Family Court. This will put on a legislative basis the prevailing practice. In the twenty-first century it is important to recognise that there have been vast changes in the nature of communications since the original lower court legislation was introduced. Therefore, the Bill will enable electronic lodgment and service of court documents. In addition to the efficiencies and cost savings that this change will give, there is also the very important fact that such electronic lodgment and service will greatly assist courts and litigants in the regional and remote parts of this vast State. In this context, I also draw members’ attention to a new initiative being undertaken in this Bill. The existing legislation does not have extraterritorial operation. It ceases at the State’s borders. However, state and territory borders do not recognise the fact that indigenous people live and constantly move across these boundaries.

The Ngaanyatjarra-Yankunytjara-Pitjandjatara lands cover the northern part of South Australia, the eastern part of Western Australia and the southern part of the Northern Territory. They form a cultural block that is not confined by state boundaries. The Aboriginal people of those lands are highly mobile and frequently travel between communities. Therefore, they cross state and territory boundaries for cultural and social reasons.

As part of an agreement between Western Australia, South Australia and the Northern Territory, it is proposed that legislation in these jurisdictions will be changed to permit the appointment of magistrates, police officers, court officers and others to exercise their powers in respect of offences wherever occurring. This will include the ability to appoint magistrates from South Australia and the Northern Territory as acting magistrates for the State of Western Australia. In practical terms, this will allow those magistrates to deal with matters that have occurred within Western Australia in those other jurisdictions in matters arising in and around the NPY lands; that is, they will be able to hear and determine all matters that occur in those lands, whether under a law of the State or Commonwealth or another State or Territory. For this purpose, the Bill will also authorise the establishment of registries and provide for the appointment of administrative staff in other States or Territories. Consequently, this State will be able to be efficient and flexible, and respond to community needs and realities. Given the importance and significance of the Western Australian community and its courts system, I therefore have much pleasure in commending the Bill to the House.

Debate adjourned, on motion by Mr J.L. Bradshaw