LOCAL COURT BILL 2015 Explanatory Statement

2015

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

ATTORNEY-GENERAL AND MINISTER FOR JUSTICE

LOCAL COURT BILL 2015

SERIAL NO. 120

EXPLANATORY STATEMENT

· for the establishment of a new Local Court which will have jurisdiction over both criminal and civil matters;

· for the appointment of a Chief Judge, one or more Deputy Chief Judges, judges, judicial registrars, a principal registrar, registrars and bailiffs;

· for the Chief Judge to be responsible for the administration of the Local Court with the power to give directions to judges regarding their place of work and directions incidental to administrative matters;

· for the making of rules by a rules committee comprising the
Chief Judge and 4 other judges;

· for access to the courtroom during proceedings and for closing of the court and prohibitions on access to witnesses, parties and representatives;

· for transitional provisions relating to appointments made, decisions taken or proceedings occurring before the date of commencement of the Local Court Act 2015.

The Bill when passed may be cited as the Local Court Act 2015. As part of the consequential amendments to the Bill, the current
Local Court Act will be renamed the Local Court (Civil Procedure) Act and will retain the procedural provisions contained in the Local Court Act.

Clause 2 makes provision for the commencement of the Act to be by notice published in the Gazette by the Administrator.

Clause 3 provides for various definitions used throughout the Bill and for cross-references to clauses in which various terms are defined.

Most of the definitions relate to the various judicial and administrative officers of the Court, as one of the aims of the Bill is to clarify and rationalise these roles.

“courtroom” is defined to include premises from where a person is giving evidence is located (eg by way of video conferencing).

deal with is defined as including ‘hear and determine’. The more inclusive ‘deal with’ has been used throughout the Bill, to simplify and provide consistency of terminology.

JP – this is defined as only including persons appointed as Justices of the Peace under section 5 of the Justices of the Peace Act. Generally, the term “Justice of the Peace” is used in legislation to include all of the other judicial officers and others who, under section 6 of the Justices of the Peace Act, are deemed to be Justices of the Peace.

This clause establishes the new Local Court of the Northern Territory, which is a consolidation of the Local Court established by section 4 of the current Local Court Act and the Court of Summary Jurisdiction established by section 41A of the Justices Act.

Clause 84 is the transitional provision that confirms the Court is a continuation of the Local Court and the Court of Summary Jurisdiction combined into one court.

See also clause 86 for transitional provisions concerning proceedings on foot when the Court is established.

5. Status of Court

Subclause 5(1) provides that the Court is a court of record. In relation to the exercise of civil jurisdiction this is a continuation of the current position, where section 4 of the Local Court Act establishes the
Local Court as a court of record. There is no equivalent provision in the Justices Act so the Court of Summary Jurisdiction, being a creature of statute, is not a court of record. The other current courts of record in the Northern Territory are the Supreme Court, the Youth Justice Court and the Work Health Court.

Characterization as a court of record gives a court certain inherent powers, such as the power to punish contempt. This sub-clause establishes equal status on the exercise of the Court’s civil and criminal jurisdictions.

Subclause 5(2) provides that the Court is a court of law and equity – this means that the Court will have the same civil jurisdiction as is currently provided in section 6 of the Local Court Act.

Subclause 5(3) provides that the Court will exercise its criminal jurisdiction summarily, as the Court of Summary Jurisdiction currently does. It replaces section 41A of the Justices Act and is based on that section and on section 11(4) of the Magistrates Court Act 2004 (WA).

6. Constitution of Court

This clause provides that in constituting the Court, the default position is that it is constituted by a judge. This reflects current practice and the position in the other Australian jurisdictions.

In relation to civil proceedings, subclauses 6(2) and (3) set out the judicial powers that can be exercised by a judicial registrar.

When the Local Court Act was enacted in 1989, the position of judicial registrar did not exist. Some acknowledgement of the creation of the position was made through amendment, in the Statute Law Revision Act 1995, to the definition of registrar (section 3 of the Local Court Act) and to section 9 of the Local Court Act, which provides for the appointment of registrars, including judicial registrars. The power of judicial registrars to exercise judicial functions is left under the current law to be provided for in rules of court.

As a matter of policy, it is preferable that decisions about the exercise of a court’s jurisdiction should be made by Parliament or the Administrator acting on the advice of Executive Council, rather than being determined by the court itself.

Further provisions regarding the appointment, powers and functions of judicial registrars, are contained in clauses 68 – 70 of the Bill. Protection from personal liability of judicial registrars is covered by section 4 of the Courts and Administrative Tribunals (Immunities) Act 2008.

In relation to criminal proceedings, the provisions in the Justices Act regarding the judicial powers of Justices of the Peace (JPs) are complex and do not reflect current practice.

In addition, a ‘justice’ under the Justices Act includes not only JPs appointed to that office under section 5 of the Justices of the Peace Act, but also ‘ex officio’ JPs, who hold that office by virtue of holding another office. These persons include the Supreme Court Judges, the judges and the registrars of the Local Court. The definition on JP in clause 3 of the Bill clarifies that only JPs appointed under section 5 of the
Justices of the Peace Act are JPs for the purpose of the Bill.

7. Changes in constitution of Court proceedings

This clause deals with the extent to which different judicial officers can handle various aspects of a matter that is before the court,

This clause addresses problems identified in the Justices Act regarding when a magistrate becomes ‘seized’ of a matter. It spells out that as a general rule, until the taking of evidence commences, the court need not be constituted by the same judicial officer.

However:

· for pleas of guilty where the matter is adjourned before the making of any sentencing submissions a different judge from the one who heard the plea may impose the penalty; and

· a new judicial officer may take over if the original judicial officer is unable to continue after the taking of evidence has commenced.

Clause 7(5) defines what is meant by ‘unable to continue’. It includes facts such as death, vacation of office or unreasonable delays due to illness or related causes. Consequential amendments are likely to be made, in due course, to section 109 of the Sentencing Act.

This clause is based on section 8 of the Local Court Act. It provides that in the exercise of judicial functions of the Court, the persons who constitute the Court are not subject to direction or control from any other person. It might be considered unnecessary noting that the exercise of judicial function is independent and not subject to external influence. Although there is no formal separation of powers in Australia at the territory level, this clause embraces the convention of such separation.

Part 3 Jurisdiction of the Court

Division 1 Jurisdiction generally

This Part sets out the jurisdiction, civil and criminal, and powers of the Court.

9. Jurisdiction of the Court

This clause is introductory to Divisions 2 and 3 of this Part, which detail the civil and criminal jurisdictions of the Court. As the Court is a statutory creation, its jurisdiction is confined to what is set out in Divisions 2 and 3 of Part 3 (as well as what might be contained in other legislation).

Recognising the consolidation of the civil and criminal jurisdictions, this clause provides that the Court does not have to adjourn and reconvene when exercising different aspects of its jurisdiction.

This clause makes it clear that the conferring of jurisdiction on the
Local Court does not affect the jurisdiction of the Supreme Court. There is, for example, no lower limit on the civil jurisdiction of the Supreme Court.

Division 2 Civil jurisdiction

12. Civil jurisdiction – jurisdictional limit

This clause is a definitional section, defining jurisdictional limit for the exercise of the Court’s civil jurisdiction. It provides for a new limit of $250 000) compared to the $100,000 as is currently in section 3 of the Local Court Act.

This clause is based on section 14(1) and (7) of the Local Court Act and deals with how the jurisdictional limit works (eg the parties can agree to the court dealing with a matter even if the jurisdictional limit set under clause 12 is exceeded). It replicates the civil jurisdiction currently enjoyed by the Local Court. The only differences from section 14(1) are in drafting style and minor changes in terminology. In clause 3 claim is defined as including ‘cause of action’, so sub-clauses 13(1), (2) and (3) can all be expressed in the same terminology without there being any change in meaning from the current section 14(1).

This is a ‘catch all’ provision confirming that other legislation may confer civil jurisdiction on the Local Court. Examples of such jurisdiction are found in:

· Unit Titles Act and Unit Title Schemes Act (special jurisdiction to deal with disputes relating to unit titles).

This clause replicates section 14(3), (8) and (9) of the current
Local Court Act. It provides for the grants or remedies permitted by clause 13 and for the making of declarations as to the rights of the parties. Clause 15(3) prohibits the issue of writs or certiorari, mandamus, prohibition or quo warranto.

This clause replicates section 14(5) of the Local Court Act, except that, based on section 34(1) of the Local Court Act (NSW), it is written in positive rather than negative form. It provides that a claim must arise in the Territory or the defendant must have resided in the Territory when served with the claim. This means that there is a degree of
extra-territorial jurisdiction to the Court exercising its civil jurisdiction.

This clause replicates section 6 of the Local Court Act and simply reflects that there are no separate courts of common law and equity and that both common law (damages) and equitable remedies can be given by the Court. It is a confirmation of what is provided in clause 13 (civil jurisdiction) and clause 15 (remedies that may be given).

The jurisdiction of the Court of Summary Jurisdiction is currently to be found by a general reading of a number of provisions in the Justices Act along with section 3 of the Criminal Code and section 38E of the Interpretation Act. The Justices Act also confers, in Part V Division 1, the power to conduct committal proceedings (called ‘preliminary examinations’ in the Justices Act).

The purpose of clause 18 is to consolidate in one provision the criminal jurisdiction of the Court and, together with the proposed amendment to section 3 of the Criminal Code, to standardise, simplify and modernise the way in which offences are classified.

In relation to the classification of offences, section 3 of the Criminal Code currently provides:

This clause mirrors clause 14 (which relates to civil matters) and provides that other laws may confer criminal jurisdiction or jurisdiction on a court of summary jurisdiction.

The latter will cover current provisions where legislation confers jurisdiction on the current Court of Summary Jurisdiction that is not necessarily criminal, for example making domestic violence orders under the Domestic and Family Violence Act or personal violence restraining orders under the Justices Act.

Part 4 Administration of the Court

Division 1 Administration generally

20. Chief Judge responsible

Currently section 4 of the Magistrates Act creates the offices of the Chief Magistrate, Deputy Chief Magistrates and Stipendiary Magistrates. Section 13A empowers the Chief Magistrate to ‘assign and apportion duties to Magistrates and Justices.

Under section 201A of the Justices Act and section 21 of the
Local Court Act the Chief Magistrate is empowered to make rules of court and give practice directions, which regulate the practice and procedure of the court.

It is implicit in the title ‘Chief’, in the powers given to the
Chief Magistrate under the current legislation and in contemporary practice, that the holder of that office is the principal judicial officer of the court and, like the Chief Justice of the Supreme Court, is responsible for ‘…the orderly and expeditious discharge of the business of the Court…’ (section 34 of the Supreme Court Act). Sub-clause 20(2) reflects the terminology in the Supreme Court Act.

Clause 20 establishes the position of the Chief Judge on a statutory footing. Similar provisions exist in other Australian jurisdictions, such as WA (section 24 of the Magistrates Court Act), South Australia (section 11 of the Magistrates Court Act) and Queensland (section 12 of the Magistrates Act).

21. Divisions of Court

This clause provides for the establishment of different divisions (criminal and civil) of the Court to deal with different types of proceedings. Other divisions can be established by the Rules (which can be made under clause 48).

Also, other legislation may require or make implicit that a separate division should exist. An example is the Care and Protection of Children Act (section 88), which has a quite separate procedural regime for dealing with child protection matters.

This clause replicates section 13A of the Magistrates Act, recognising the need for the Chief Judge, as the principal judicial officer of the Court, to have the power to give to judicial officers directions that are incidental to maintaining control of the proper functioning of the Court. Judicial officers must comply with directions of the Chief Judge, although failure to comply is not an offence.

This clause, like section 13A, specifically provides that the Chief Judge has the power to direct judicial officers as to where in the Territory they are to perform their duties.

This clause, like its predecessor, does not diminish judicial independence as the Chief Judge cannot direct how a judicial officer will perform his or her duties. Subclause 22(3) makes this clear.

This clause relates to the discretions that the Chief Judge can exercise regarding part time work hours of Judges. If a Judge is appointed on a full time basis (clause 54) that Judge and the Chief Judge may agree that the Judge may work part time. Similarly if a Judge is appointed on a part time basis (clause 54) – an agreement can be reached regarding a lesser number of hours.

However, if a Judge is appointed on a part time basis under clause 54 the Chief Judge has no power to agree to that Judge being remunerated more than for that applicable to performance of the juridical role on the part time basis.

24. Where and when Court may sit

Sections 47 and 60A of the Justices Act, section 5A of the Local Court Act and sections 13 and 13A of the Magistrates Act deal with where and when the Court of Summary Jurisdiction, the Local Court and ‘Magistrates and Justices’ respectively may sit.

Clause 24 draws all these provisions together. It maintains that the default position for where the Court may sit is at places and in buildings approved by the Minister. To date, this approval has been by an instrument made by the Minister under section 13 of the Magistrates Act. Clause 91 of the Bill provides for the continuation of such an approval when the new Act commences.

As part of the Chief Judge’s responsibility for the administration of the Court, he or she is to decide when and at which approved places and buildings the Court is to sit.

While not abrogating from the default position that places where the Court may sit are to be approved by the Minister, subclause 24(4) provides for flexibility in particular proceedings by empowering the Court to sit in a place other than an approved place if required for expediency. For example, an approved building in a bush court circuit may on a particular occasion not be available for the Court to use. Rather than frustrate the bush court sittings, the Court may sit in another place. This subclause also facilitates the operation of the Cross-Border Justice Act so that the Court, operating under that Act, can sit in places in Western Australia and South Australia.

25. Registries

This clause provides for the maintenance of a registry at each place approved under clause 24. The principal registrar is responsible for the management of each of the registries.

This clause provides for a court seal and for such copies (in the form of stamps) as are necessary for the business of the court.

Division 2 Court records and exhibits

Requirements as to the keeping of court records and access to such records or parts of them or to exhibits by parties and non-parties are currently piecemeal and fragmented.

Part 4 Division 2 provides a simplified statutory framework regarding what records need to be kept and entitlements and applications for access to various parts of the records and to exhibits. The provisions regarding access are cast in general terms to allow for flexibility.

Further detail as to the operation of these provisions can be made by Practice Direction (under clause 49) or Rules (under clause 48).

This Division is essentially new, with input from:

· section 12 of the Local Court Act (Court records);

· sections 70, 71 and 72 of the Justices Act (minuting court findings and furnishing copy of complaint and conviction to interested party);

· Chapter 12 of the Criminal Procedure Rules 1999 (QLD) (Custody and inspection of exhibits and access to court files);

· NT Supreme Court Practice Direction No. 2 of 2010 (Access to the Court building, judgments, exhibits and files by the public or the media and other matters); and

· NT Chief Judge’s Practice Directions No. 2 of 2011 (Access to exhibits by non-parties in the Judges Courts of the
Northern Territory), No. 3 of 2011 (Access to criminal files Court of Summary Jurisdiction and Youth Justice Court), No. 21 of 2012 (Access to files Local Court, Work Health Court) and No. 1 of 2013 (Access to Judges’ Court files (Domestic violence and personal violence)).

It is intended that, consequent to enactment of this Division, the Records of Depositions Act will be amended or repealed.

Section 12(1) of the current Local Court Act provides that ‘a registrar’ ‘shall cause a record to be kept of all orders of the Court and of such other matters as are directed by this Act or the Rules to be recorded’. Pursuant to section 3 of the Local Court Act, a ‘registrar’ is a person appointed under section 9 as a judicial registrar, acting judicial registrar, registrar, Deputy registrar or acting registrar. Therefore, section 12(1) does not make it the responsibility of any one person to keep the court records.

The Justices Act provides even less. The Court of Summary Jurisdiction is technically not a court of record at all and the record keeping obligations seem confined to a requirement under sections 70 and 71 that a ‘minute or memorandum’ be made of a finding of guilt or the dismissal of a complaint respectively. There is a power also, although no obligation, for the Court to ‘draw up an order of dismissal and give the defendant a certificate’. Nothing in the Justices Act states who is responsible for keeping these records.

In practice, the criminal and civil registries of the courts keep case files.

Clause 27 is cast wider than being confined to the keeping of case files, as there may be other records that may be considered proper to be kept. Clause 27 places the responsibility of keeping the Court records on one person, the ‘principal registrar’. This is a new statutory position (see clause 71).

There will be a single principal registrar, responsible for the keeping of the Court records in all the registries around the Territory, both civil and criminal. One of the aims of the Bill is to rationalise the various
non-judicial officers and the creation of the position of principal registrar is part of this rationalisation.

28. Case files

The requirements of the contents of case files are apply both to files in the criminal and civil registries. The clause lists the contents of case files. It is a non-exhaustive list of the required contents developed following consultation with registry staff as to what is actually kept on the file. These contents more than cover the existing requirements under the Local Court Act and the Justices Act.

Section 12(3) of the current Local Court Act entitles any person (unless the Court orders otherwise) to inspect Court orders, on the payment of a fee. The fee is prescribed in the Local Court Regulations. Parties may, without charge, inspect records regarding their proceedings (section 12(4) of the Local Court Act). Section 72 of the Justices Act allows ‘interested parties’ to inspect and receive copies of complaints and orders of guilt, on the payment of a fee, prescribed in the Justices Regulations.

Access to other court records and exhibits by parties and non-parties is otherwise regulated by Chief Magistrate’s Practice Directions No. 2 of 2011 (Access to exhibits by non-parties in the Magistrates Courts of the Northern Territory), No. 3 of 2011 (Access to criminal files Court of Summary Jurisdiction and Youth Justice Court), No. 21 of 2012 (Access to files Local Court, Work Health Court) and No. 1 of 2013 (Access to Magistrates’ Court files (Domestic violence and personal violence)).

Clause 29 maintains the current policy position that distinguishes between parties and non-parties regarding access to court records and materials on court files.

Parties are entitled to have access to the information and documents on a court file listed in clause 28 (a) – (h) with the exception of an audio or audio-visual recording of any part of a proceeding. For access to that, they must seek leave of the court. This reflects current practice and facilitates the efficient operation of the Court’s registry, so that arrangements can be made for listening/viewing or obtaining copies of such material. Although parties will be entitled to inspect and
copy most of the contents of the court file, regulations may prescribe fees to do so (see clause 32), as is the current position under
the Justices Regulations, the Local Court Regulations and the
Records of Depositions Act.

Non-parties will require leave of the court to have access to any record other than judgments and orders (see clause 31(2)). Subclause 31(3) provides that the Court may grant access on any conditions it thinks fit.

It is anticipated the guidelines for the exercise of this discretion will be included in Practice Directions, as currently, or in Rules. As with access by parties, regulations under clause 32 may prescribe fees for access.

30. Access to judgments and orders

Reflecting the current law, under section 12(3) of the Local Court Act and section 72 of the Justices Act, access to judgments and orders is available equally to parties and non-parties, unless the Court makes an order, under subclause 30(2), in a specific case, restricting such access. Clause 32 provides that fees may be prescribed by regulation.

Exhibits are not part of the case file or the records of the court. Accordingly, a separate provision regarding access to them has been included in the Bill. However, clause 31 mirrors clause 29, distinguishing in the same way between parties and non-parties.

As with access to case files, it is anticipated that guidelines for the exercise of this discretion will be included in Practice Directions, as currently, or in Rules. Regulations under clause 32 may prescribe fees for access.

32. Fees

Under the regulation making powers in section 21 of the Local Court Act, section 201A of the Justices Act and section 51 of the Small Claims Act, regulations currently prescribe fees for: inspection of court orders (Item 4 Schedule Local Court Regulations, Regulation 5 of the Small Claims Regulations); a copy of a document in proceedings
(Reg 6(1)(e) Justices Regulations); a certified copy of an order (Item 3 Schedule Local Court Regulations); and photocopying by court staff (Item 7 Schedule Local Court Regulations). In addition, the Records of Depositions Act provides for the recording of depositions (statements of witnesses on oath) in the lower courts.

Fees are currently prescribed in the Records of Depositions Regulations.

It is anticipated that these regulations will be repealed and remade as one set of regulations under the regulation making power in clause 81.

Current provisions covering situations where there is an exemption from paying fees or fees can be waived, are expected to be continued in the new regulations. The Records of Depositions Act and its regulations will also be amended or repealed.

In respect of fee waivers, the Interpretation Act (section 65C) implies into all regulation making powers concerning fees a power to also provide for waiver or refund of fees. For this reason, the Bill contains no explicit provisions dealing with waivers and refunds.

This clause is based on 33(1) of the Magistrates Court Act 2004 (WA).

33. Principal registrar to provide copies

This clause provides that it is the duty of the principal registrar to provide for copies of things that can be accessed in accordance with clauses 29-31.

This clause acknowledges that other legislation may limit access to court records or exhibits or to the publication of documents or other things. For example, there is a general power in section 57 of the Evidence Act to prohibit publication of evidence in the interests of public decency or names of parties or witnesses in the interests of the administration of justice and there are certain prohibitions regarding publication in the Sexual Offences (Evidence and Procedure) Act.

Division 3 Court procedure

The main purpose of the Bill is to establish the jurisdiction of the Court, not its practices or procedures. However, some (arguably) procedural matters are so fundamental to the exercise of the Court’s jurisdiction and are of such general application regardless of whether the jurisdiction exercised is criminal or civil, that they may appropriately be included in the Bill.

35. Procedure generally

Subclauses 35(1) and (2) provide reference to legislation that governs civil and criminal respectively. A similar provision, in relation to criminal jurisdiction, is found in section 11(3) of the Magistrates Court Act 2004 (WA).

As part of the process for implementing this Act:

· the Local Court Act will be amended so that its jurisdictional provisions are removed (ie they will be in this Act). The only provisions that will remain in the old Local Court Act will be those dealing with civil procedure. The intention is that will be renamed as the Local Court (Civil Procedure) Act ; and

· similarly, for the Justices Act. After the removal of its jurisdictional provisions it is likely to be renamed as the Local Court (Criminal Procedure) Act.

Subclause (3) is based on section 21(4) of the Local Court Act, which is a catch all provision regarding procedure and practice in the Court.

36. Court to be open to public

Subclause 36(1) provides that, as a general rule, the Court is to be open to the public. This is currently provided for regarding the Court of Summary Jurisdiction in section 61 of the Justices Act and, for the Local Court, implicitly in sections 7 and 28 of the Local Court Act. It reinforces the undesirability of secret trials and the presumption that court proceedings should be open and justice should be seen to be done.

There is currently power under section 61(2) of the Justices Act and section 28 of the Local Court Act for the Court to order witnesses to leave the courtroom until called to give evidence, and this power is retained in subclause 24(2) of the Bill.

There is also power under section 61(3) of the Justices Act to close the Court of Summary Jurisdiction if a ‘Special Act’ authorises or requires proceedings to be held in a closed court (in camera). An example of this is section 21F of the Evidence Act, which provides that a court is to be closed when the evidence of a vulnerable witness in relation to a sexual offence or serious violence offence is being taken.

Section 7(2) and (3) of the current Local Court Act imply that, in accordance with existing practice and procedures, certain civil proceedings can be held other than in an open court. However, there is no explicit power in the Local Court Act to close the Court and no power at all in the Justices Act, unless authorised or required by another Act.

Sub clause 36(2) provides the rules may set out the circumstances in which proceedings need not be open to the public.

Clauses 37-39 set out the circumstances in which persons can be excluded from the courtroom.

37. Orders to exclude persons from courtroom

This clause provides that witnesses and other persons may be excluded from the courtroom if this is necessary for the service of justice. Clause 37 does not apply to parties and their representatives (but see clause 38).

This clause provides for the circumstances in which parties and their legal representatives can be excluded from the courtroom. It is consistent with section 361 of the Criminal Code (concerning the Supreme Court). They can be excluded if their conduct is such that it is impracticable for proceedings to continue if they are present.

39. Refusal of documents if abuse of process

There is currently no express power in either the Justices Act or the Local Court Act to enable administrative staff in the court registries to refuse to accept lodgment of a document on the basis that it is frivolous, vexatious or otherwise an abuse of the court’s process. This clause provides such an express power.

The purpose of this provision is to prevent wasting resources. It is based on a similar provision in section 17 of the Magistrates Court Act 2004 (WA). The exercise of this power by a registrar is reviewable by a judge, so anyone aggrieved by a registrar’s refusal can apply to a judge for leave to lodge the document.

This clause provides that judgments and orders must be issued under seal and signed by a judge or by a registrar (but not necessarily by the person who made the judgment or order). The clause is based on section 12(2) of the Local Court Act and a modification of section 14 of the Justices Act. Subclause (1) reflects the current practice in both the Local Court and the Court of Summary Jurisdiction where, in particular, orders are signed by a registrar rather than a judge as they are prepared in the registry.

Section 14 of the Justices Act requires that orders, judgments, warrants and summonses be signed ‘under the hand of the Justice’ who made them. This is not what in practice happens. Subclause (2) makes it clear that the person who made the order is not required to be the person who constituted the court when the order was made.

41. Issuing of process

The current provisions of the Local Court Act and the Justices Act suggest that all documents must be signed by the judicial officer who issued them.

Sub clause 41(1) provides that the seal of the court must be used for all documents issued by the Local Court.

Subclauses (2) – (5) resolve current uncertainty about the power to cancel process, as there is no express statutory provision to do so in the Justices Act. Process may, for example, need to be cancelled when it has been issued in error or when a particular summons or warrant is no longer required. A similar provision is found in section 21 of the Magistrates Court Act 2004 (WA).

42. Correction of errors

This clause is similar to existing provisions in section 28B of the Local Court Act and section 185(2) of the Justices Act and its drafting is based on section 23 of the Magistrates Court Act 2004 (WA). It is known as the ‘slip rule’ and allows for correction of technical errors so as not to invalidate judgments, orders or process and to ensure the smooth running of the Court. A similar provision exists for the NT Supreme Court in Order 36.07 of the Supreme Court Rules.

There is currently no express power for the Court to order entry to make an inspection.

Entry might be needed, for example, to inspect the scene of accident or view exhibits that are too big to be brought to court. This clause puts beyond doubt that there is power for the making of such an order. The drafting is based on section 22 of the Magistrates Court Act 2004 (WA).

44. Party entitled to appear in person or by counsel

This clause is for clarification. It reflects section 29 of the Justices Act. It provides that a person may represent themselves or use a legal practitioner. It does not prevent another person appearing for a party if the Rules or another Act so permits. For example, section 101 of the Care and Protection of Children Act allows for a legal practitioner or ‘any other person’ to represent a party in proceedings in the Local Court’s family matters jurisdiction.

Division 4 Contempt

Clear, express contempt provisions are integral in legislation establishing a court of inferior jurisdiction. Unlike the Supreme Court, lower courts have no inherent power to punish contempt unless it is in ‘the face of the court’ (i.e. behaviour that occurs in court). Without statutory power, such courts cannot punish as a contempt failure to comply with an order or undertaking to the court or failure to comply with a summons.

The contempt provisions in the Bill are new. While the provisions in sections 33 and 34 of the current Local Court Act are reasonably comprehensive, the provisions in the Justices Act (sections 26, 26A, 46 and 108A) are fragmentary. They relate to discrete situations rather than being of general application.

The new provisions are based on sections 33 and 34 of the Local Court Act but ensuring that any aspects of contempt not covered by those sections but covered in the Justices Act are included. It is also made clear that failure to comply with a court order is a contempt as is failure to comply with an undertaking (such as a promise in court by a lawyer to do something).

The maximum penalty for contempt has been reviewed and increased. Currently it is $20 under the Justices Act and 1 month imprisonment or 15 penalty units ($2235) under the Local Court Act It is considered that the current penalties under both Acts are insufficient and a new maximum penalty of 6 months imprisonment or 50 penalty units is proposed (clause 47).

The power to punish for contempt is confined to judges only.

45. Contempt of Court

This clause sets out all the ways in which a contempt of court can be committed, whether it is in the face of the court or not. It covers the existing situations under the Local Court Act and the Justices Act and also includes failure to comply with an order (subclause (3)) and failure to comply with an undertaking (subclause (4)). For the meaning of ‘oath’ as used in this section (and in all other NT legislation) see section 5 of the Oaths, Affidavits and Declarations Act.

This clause is based on section 34 of the Local Court Act and retains maximum flexibility for the Court to determine the procedure to deal with a contempt. If an alleged contempt is committed in a Court constituted by a justice of the peace (or more than one justice of the peace), a judicial registrar or a registrar, then it can be referred to a Local Court judge for consideration.

Section 163 of the Justices Act (as amended following the commencement of the Local Court Act 2015) will operate so as to permit appeals.

47. Punishment for contempt

The maximum penalty for contempt that can be imposed has been reviewed and revised at 6 months imprisonment and/or 50 penalty units. In determining this level, consideration was given to the wide divergence of penalties for contempt in other Australian jurisdictions and the maximum penalty for conduct akin to contempt under other Northern Territory legislation.

This is the same maximum penalty as in Northern Territory Civil and Administrative Tribunal Act 2014, s.86

Division 5 Rules and directions

This Division replicates the power of the Chief Judge to make practice directions or rules of court under section 21 of the Local Court Act and section 201A of the Justices Act.

In the current legislation there is considerable overlap between the subject matter of practice directions, rules and it is not clear when one should be used instead of the other.

Current practice is that criminal practice is regulated by practice directions and civil practice by a combination of the extensive Local Court Rules supplemented by practice directions.

The distinction between rules, which are disallowable by Parliament under section 63 of the Interpretation Act and practice directions, which are not, is blurred as it is the Chief Judge alone who has the power to make both practice directions and rules. In the Supreme Court, the power to make practice directions is vested in the Chief Justice
(section 72 of the Supreme Court Act) but rules must be made by at least a majority of the judges (section 86 of the Supreme Court Act), which reflects that the rules are rules of ‘the court’. The Chief Justice can make directions for matters that are not covered by the Act, Regulations or Rules (section 72). Elsewhere in the other Australian lower courts, jurisdiction to make rules is not vested in the Chief Judicial officer alone. New South Wales and Tasmania provide for a Rules Committee and the other jurisdictions for a minimum number of judicial officers(a de facto rules committee).

48. Rules of court

This clause re-enacts the power in section 21 of the Local Court Act and section 201A of the Justices Act.

The proposed provisions vary, however, from the current provisions in so far as the Chief judicial officer is no longer solely responsible for the making of rules. Rather they are to be made by the Chief Judge and at least four other judges. This is comparable to the procedure under the Supreme Court Act subject to the fact that only five Local Court judges rather than, say, all or a majority being required for the making of the rules.

49. Practice directions

This clause re-enacts the power in section 21 of the Local Court Act and section 201A of the Justices Act. Practice directions are made by the Chief Judge and operate subject to any rules made under clause 48.

Part 5 Judges of the Local Court

Division 1 Chief Judge, Deputy Chief Judges and judges

This Part substantially incorporates the provisions of the Magistrates Act, which will be repealed.

It provides for the appointment, functions and powers of Local Court judges. Most of the provisions in this Part are unchanged except in drafting style and modernisation of language from the existing provisions in the Magistrates Act. For example, clause 57 (termination of appointment) is unchanged from section 10 of the Magistrates Act. Minor changes have been made regarding eligibility for appointment (clause 53), acting Chief Judge (clause 59) and acting judges (Division 2).

Subdivision 1 Establishment of offices, powers and functions

50. Judicial offices

This clause re-enacts section 4(1) and (2) of the Magistrates Act. It provides that there is to be a Chief Judge. It also provides that the number of Deputy Chief Judges and the number of judges are both to be determined by the Minister.

This clause re-enacts section 18 of the Magistrates Act and provides that a judge may carry out functions conferred by other Acts or functions conferred on a justice of the peace or any registrar (including a judicial registrar).

This clause re-enacts the current provision in section 18 of the Magistrates Act. It provides that a judge has the necessary powers to perform his or her functions.

This clause provides for the appointment of judges by the Administrator, including the Chief Judge and Deputy Chief Judge. The core requirements for appointment are that the person must have been a lawyer for at least 5 years and is aged under 70 years of age.

It substantially replicates the existing sections 4(3) and 5 of the Magistrates Act except that subclause (2) modernises and brings into line with the other Australian jurisdictions the criteria for eligibility for a judge. Currently, a lawyer with 5 years standing admitted in England, Scotland, Northern Ireland, Papua New Guinea and New Zealand is eligible for appointment as a magistrate in the Northern Territory. These special references are not being re-enacted.

54. Full- time or part-time appointment

This clause provides that a Judge can be appointed on a full or
part-time basis with the default position being that of full-time appointment.

This clause re-enacts section 6 of the Magistrates Act. Terms and conditions will continue to be set by the Remuneration Tribunal under the Assembly Members and Statutory Officers (Remuneration and Other Entitlements) Act. There is also a ‘no detriment clause’ (clause 55(2) and an appropriation clause (clause 55(3)).

This clause is based on sections 7, 8 and 10 of the Magistrates Act and retains the current circumstances in which a judge vacates office (ie reaches 70 years, resigns or the appointment is terminated under clause 57). Death is also self-vacating.

This clause is modelled on section 40 of the Supreme Court Act. As for that Act it does not address the procedure that should be adopted for the Administrator to exercise his or her power under this provision.

This clause facilitates the completion of proceedings by a judge even if their appointment has ended. For example, if a judge turned 70 in the course of a summary hearing, he or she would be able to continue to hear and determine the proceedings, including making judgment and imposing sentence (if applicable). It is based on section 20A of the Magistrates Act. It does not apply if termination occurs under clause 57.

This clause replaces section 9 of the Magistrates Act and the drafting is based on Schedule 1 clause 8 of the Magistrates Court Act 2004 (WA). The current section 9 is not clear about the circumstances where an acting Chief Judge should be appointed.

The natural devolution to the first appointed Deputy Chief Judge obviates the need for an appointment by the Administrator for what could be a relatively short period of time.

The power of the Administrator to make the appointment of acting
Chief Judge is retained, however, as there may be circumstances where such appointment is preferable to devolution to a Deputy
Chief Judge. For example, if the office of Chief Judge becomes vacant, it may be expedient to appoint a judge who does not want to apply for the permanent position, so as to create a more level ‘playing field’ for other applicants.

Division 2 Acting judges

The Magistrates Act provides for three different types of ‘acting’ judge, each with different methods of appointment. Section 9 provides for ‘acting’ judges, section 9A for ‘relieving’ judges and section 14 for ‘special’ magistrates (applies to JPs appointed as a magistrate). Although titles differ as do methods and terms of appointment, each of the other Australian jurisdictions has only one type of ‘acting’ lower court judicial officer.

Division 2 creates a single type of ‘acting’ judge. The purpose of the provisions in this Division is to enable additional judges to be appointed on a short fixed term basis to cope with particular circumstances such as: temporary increase in workload or temporary shortage of judges (e.g. sick or on leave or involved in a lengthy hearing). The provisions also provide for acting judges to be appointed on a sessional basis (ie so that the Chief Judge may call on them on an as needs basis).

60. Appointment

This clause is based on sections 9 and 9A of the Magistrates Act. To allow for appointments that may need to be made quickly, the Minister is empowered to appoint an acting judge for a term up to three months. For a longer term, up to 12 months, the appointment must be made by the Administrator.

Clause 60(2)(b) is designed to ensure that Acting appointments can be made on a sessional basis.

Clause 60(4) is designed to make it clear that acting appointments can be extended – that is, so that section 60(3) is not read as imposing a time limit for cumulative appointments.

In other jurisdictions a person who has retired as a lower court judicial officer because of the age restriction may be appointed as an acting judicial officer for a period (commonly two years) following the statutory age of retirement. Retired Judges provide a good source for acting appointments. This was the case in the NT before the statutory age for retirement was raised in 2013 from 65 years to 70 years.

In considering the issue of whether a person aged over 70 is suitable to act as an Acting Judge there seems to be no particular need for the person to have previously been appointed as a NT Judge.

Clause 60(3) also raises (from 70 years to 75 years) the maximum age applicable to a person being appointed as an acting magistrate.

Clause 60 is designed to permit the establishment of a pool of persons who, on an as needs basis, can be called on by the Chief Judge. Each appointment is limited to a 12 month period (if made by the Administrator or 3 months (if made by the Minister). A time period is necessary so as to ensure that tenure for judges is retained as a general principle while accepting the practical necessity, for the purpose of providing judicial services, to have short term appointments. There can be successive short term appointments (clause 60(5)).

61. Functions and powers of acting judges

This clause provides that acting judges have the same functions and powers as a judge. It reflects existing provisions in the Magistrates Act.

62. Conditions of appointment

If the Minister makes the acting appointment he or she determines the conditions of appointment. If the Administrator makes the acting appointment he or she determines the conditions of appointment. This clause reflects existing provisions in the Magistrates Act

63. Vacation of office

This clause provides that an Acting Judge’s appointment ceases on end of their term of appointment, on reaching the statutory age of retirement of acting judges (ie 75 years), on resignation on a termination by the person (Administrator or Minister). The clause reflects existing provisions in the Magistrates Act.

Similar to clause 58 regarding full time judges, this clause facilitates the completion of proceedings by an acting judge even if their appointment has ended. For example, if a judge turned 75 in the course of a summary hearing, he or she would be able to continue to hear and determine the proceedings, including making judgment and imposing sentence (if applicable).

Division 3 General matters

This Division covers general matters regarding both judges and acting judges. It is noted that section 19A of the Magistrates Act, which provides protection from civil liability for judicial officers exercising judicial functions, is not re-enacted here. That is because it has become superfluous given the enactment of more comprehensive provisions in the Courts and Administrative Tribunals (Immunities) Act 2008.

65. Oath of office

This clause re-enacts section 20 of the Magistrates Act. The oath of office is to be taken before a judge of the Supreme Court or by a person authorised by the Administrator (if the oath is to be taken outside of the Territory). The oath of office is set out in Schedule 1.

This clause is based on section 11 of the Magistrates Act. It is a standard provision in equivalent legislation throughout Australia, although the Northern Territory is the only jurisdiction where the Minister can consent to judges engaging in other paid employment. The ability for a judge to continue to hold office in another Territory or to hold office in the armed services is proposed to be removed as being obsolete and out of date.

This clause is based on section 19 of the Magistrates Act. It provides that various activities of a judge outside of the Territory are as effective as if they occurred in the Territory. These activities include authenticating signatures and administering oaths.

Part 6 Other Court officers

The purpose of this Part is to rationalise and give statutory authority to the quasi and non-judicial officers of the Court. Particular features of this Part are:

· establishing the criteria for eligibility of appointment as a judicial registrar (clause 68);

· rolling up the multiplicity of non-judicial officers under the Local Court Act and the Justices Act (e.g. registrar, deputy registrar, acting registrar, ‘the ‘Clerk of Court; ‘a’ clerk of court) into the office of ‘registrar’ (clauses 71-73 ).

The current position of judicial registrar was created subsequent to the enactment of the Local Court Act. The criteria for and mode of appointment have not been provided for by statute. Current practice is that judicial registrars must be legal practitioners as they exercise judicial functions in the Local Court, including hearing and determining matters in the small claims jurisdiction. They are public servants and they are appointed by the Minister. In all respects their eligibility and appointment are similar to the office of Deputy Coroner under the Coroners Act. It is noted that the latter office does not exercise a judicial function.

Clause 68 maintains the current provisions.

69. Functions of judicial registrars

This clause sets out that the functions of a judicial registrar include the exercise of the jurisdiction of the Local Court as provided in clause 6 - ie:

· dealing with other civil matters (except for hearing and determining claims and hearing appeals); and

· performing functions provided for in the Rules of Court or in the Local Court Act or in any other Act.

This clause provides that a judicial registrar has the powers necessary to perform the functions set out in clause 69.

Division 2 Principal registrar and other registrars

71. Principal registrar and registrars

This clause provides for public servants to be assigned by the Chief Executive Officer of the Department administering the Local Court Act to the positions of principal registrar and registrars of the Court.

The position of principal registrar is new. The Justices Act provides for a Clerk of Court.

In practice there are currently two positions of ‘principal registrar’ of the Local Court (one in Darwin and one in Alice Springs) but there is currently no statutory basis for these positions.

In the interests of clarifying responsibilities, providing for uniformity of practice and mitigating any north/south divide, it is proposed that there be only one principal registrar. One of the responsibilities of that person will be the keeping of Court records (clause 27).

72. Functions of registrars

· to exercise the powers delegated to them under clause 74 under rules of court as made under clause 48;
· to perform administrative functions conferred on them by rules of court or by any legislation;
· to perform other functions conferred by the Act or any other Act; and
· to perform administrative functions as directed by the Chief Judge.

These provisions are based on sections 9, 10 and 21(3) of the current Local Court Act.

73. Powers of registrars

This clause sets out that a registrar has the powers necessary to perform his or her functions. It is based on section 9(2) of the current Local Court Act.

This clause is based on sections 9(2), 11 and 21(3) of the Local Court Act and sections 201A(3) of the Justices Act and section 28 of the WA Magistrates Court Act 2004.

It provides that the rules of court may delegate to registrars some of the court’s jurisdiction. The rules of court cannot delegate the power to hear or determine civil claims – but this operates subject to other legislation or appeals. Nor can the rules delegate the power to conduct a preliminary examination (ie committals) or to hear and determine a charge for an offence nor can they delegate the power to punish for contempt.

75. Review of decision of registrar in exercise of delegated jurisdiction

This clause provides that a judge can hear appeals from decisions of registrars. The clause is based on Local Court Rule 4.04 and WA Magistrate Court Act, section 29.

Division 3 Bailiffs

76. Bailiffs

This clause provides that the Chief Judge may appoint bailiffs for the court. A police officer may also perform all the functions of a bailiff of the court. This clause is based on clause 10A of the Local Court Act.

This clause is also based on section 10A of the Local Court Act. It provides that the functions of bailiffs are to serve and execute the process issued by the court, perform functions provides by the rules of court, perform functions as directed by judges or perform functions conferred by legislation.

This clause provides bailiffs with the necessary powers to exercise their functions.

Division 4 Interstate or overseas arrangements

79. Out-of-Territory registrars

This clause is based on section 9 of the Local Court Act and section 42 of the Justices Act.

It provides that the Minister may appoint persons as registrars for the purpose of exercising the powers of the court outside of the Northern Territory.

80. Registrars may hold appointments for other jurisdictions

This clause is based on section 9 of the Local Court Act and section 42 of the Justices Act.

It provides that a registrar can, with the approval of the Minister, hold office as a registrar or deputy registrar of a court of another jurisdiction.

Clause 81 sets out the regulation making power. It should be read with the Interpretation Act which contains standard provisions for matters that can also be covered in regulations.

Part 8 Repeals and transitional matters for the Local Court Act 2015

Division 1 Repeals

82. Laws repealed

This clause provides for the repeal of the Acts listed in Schedule 2. These Acts are the Magistrates Ordinance 1978 and Acts that amended that legislation.

Division 2 Transitional matters for Local Court Act 2015

83. Definitions

This clause provides that the Local Court and the Court of Summary Jurisdiction are combined and continue on as the new Local Court. The clause also explains how references to the new Local Court are to be read when there are references in other documents (including legislation) to the former courts.

This clause provides for the status quo regarding the number of Deputy Chief Judges and the number of other judges namely that, pending any changes made under clause 50, there will one Deputy Chief Judge and 12 judges.

The clause also provides for the maintenance of current conditions for holding office.

86. Ongoing proceedings

This clause provides that proceedings occurring when the new legislation commences are to become proceedings of the new Local Court. Unless the Court is satisfied that proceedings under the new Act would operate unfairly, the procedures under the new Act will apply rather than the procedures that were applicable under the legislation that applied to the old courts.

Judgments, orders and process under the old Acts become judgments, orders and process under the new Act.

Things done by Magistrates under the Magistrates Act continue to have the same effect notwithstanding the repeal of the Magistrates Act.

Rules of court made under section 21 of the old Local Court Act, section 201A of the Justices Act, and section 13(2) of the Personal Injuries (Civil Claims) Act become rules of court under the new Local Court Act.

Similarly practice directions under 21 of the old Local Court Act, section 201A of the Justices Act are deemed to be practice directions under clause 49.

The Justices Regulations made under the Justices Act are deemed by clause 89(2) to be rules of court for the purposes of clause 48.

90. Directions to judicial officers

This clause provides that directions (to Magistrates) given under section 13A of the Magistrates Act become directions for the purposes of clause 49.

Appointments of places to sit made under section 13 of the Magistrates Act apply as if made under clause 24(1).

The old provisions relating to contempt continue to apply to contempts that may have occurred prior to the commencement of the new legislation.

This clause maintains the status quo under the old Local Court Act so that the Supreme Court has no power to grant relief by way of the various prerogative writs for things done before the commencement of the new legislation.

This clause provides that references in other Acts or documents to the new Local Court Act include a reference to the old Local Court Act, Justices Act or Magistrates Act (depending on context).

This schedule sets out the legislation that is being repealed – namely the Acts that comprise the Magistrates Act.

Northern Territory Explanatory Statements

LOCAL COURT BILL 2015