Thursday, January 31, 2013

Happy 2013, and the Courts Legislation Amendment (Reserve Judicial Officers) Bill

I just returned from a month long holiday in Vietnam, so apologies to my readers for the absence of posts during the Christmas and January 2013 period. A belated happy new year to all of my readers.

I attended the Victoria Law Foundation's Legal Laneway breakfast yesterday, which was a nice way to start the year amongst friends and colleagues. The Attorney General, Robert Clark, gave a refreshing (and admirably noteless) speech to the crowd. The Attorney's speech reminded me of the Courts Legislation Amendment (Reserve Judicial Officers) Bill which was introduced into Parliament on 13 December 2012, and which has progressed through the first and second reading in the Victorian Legislative Assembly (lower house).

The Bill proposes to repeal the legislation, introduced by the previous government, which created the position of acting judicial officers, and legislate for the creation of the reserve judicial officer. The title may appear similar, but the position differs greatly in practical terms.

The acting judicial officer (either Judge of Magistrate) was a legal professional who was given a temporary judicial position to deal with fluctuations in the judicial workload. This position caused concern to the legal profession, as the acting judicial officer did not have the security of a permanent position and was normally not an experienced Judge of Magistrate. The fact that the position was not permanent gave rise to questions of independence in the role, largely because reappointment was dependent on the attitude of the government at the time.

The Courts Legislation Amendment (Reserve Judicial Officers) Bill allows the Governor in Council to appoint retired and other former tenured Judge of Magistrate, and interstate Judge of Magistrate to the position of reserve Judge of Magistrate.

The explanatory memorandum provides as follows:
The Courts Legislation Amendment (Reserve Judicial Officers) Bill 2012 amends the Constitution Act 1975 , the Supreme Court Act 1986 , the County Court Act 1958 , the Magistrates' Court Act 1989 and the Children, Youth and Families Act 2005 and make consequential amendments to other Acts.

The Bill improves the court and judicial system by providing for the offices  of reserve judge and reserve magistrate, abolishing the offices of acting judges and acting magistrates and making consequential amendments to certain other Acts.
Some highlights of the Courts Legislation Amendment (Reserve Judicial Officers) Bill are:
  • The Governor in Council may appoint as many reserve Judge of Magistrate as are necessary for transacting the business of the Court.
  • The office of reserve Judge of Magistrate ceases after 5 years or when the reserve Judge of Magistrate reaches the age of 75 years.
  • It prohibits a reserve Judge of Magistrate from engaging in legal practice, undertaking paid employment or conducting a business, trade or profession while engaged to undertake the duties of a Judge, without the approval of the Attorney-General.
  • It provides that a reserve Judge of Magistrate has the same powers, jurisdiction, immunities and protection as a Judge of Magistrate of the relevant court.
  • It provides that a reserve Judge of Magistrate may be employed on a full time or sessional basis, the former being paid at the full judicial rate and the latter paid at a sessional rate. The salaries are to be adjusted if the acting Judge of Magistrate is already receiving a judicial pension.
  • Reserve Judges and Magistrates are eligible for re-appointment.
  • A reserve Judge of Magistrate cannot be appointed Chief Justice or Chief Judge, President of the Court of Appeal, or Chief Magistrate.
I'll provide an update post if or when the Bill receives Royal Assent.

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