Criminology Research Council grant ; (19/76)
The aim of the author was to make an Australia-wide survey of magisterial jurisdiction, to define its place in our legal system, and to predict in which way it ought to develop in the future.
In 1984 the Law Book Company published Summary Justice by Ward and Kelly which is a comprehensive description of magisterial jurisdiction in South Australia from a strictly legal point of view. The Law Book Company has published commentaries upon this work prepared in New South Wales, Victoria, Queensland, Western Australia and Tasmania. The author assisted in writing the Tasmanian commentary. Ward and Kelly with its companion commentaries constitutes the first national description of magisterial jurisdiction. For the first time it has become possible to make a quick and efficient comparison of the law between the Australian jurisdictions in any particular respect.
However, it is the author's contention that magisterial jurisdiction can only be fully understood and appreciated in its historical context. Accordingly, a major part of the work is devoted to the history of the magistracy. Chapter I deals with the early history of the magistracy, Chapter 2 with the magistracy punishment, prisons and transportation in the eighteenth century, Chapter 3 with the introduction of the magistracy into Australia and Chapter 4 with the magistracy in the nineteenth century.
One chapter is devoted to committal proceedings and the future direction the law should take. Juvenile crime and juvenile welfare is discussed in another chapter and in particular the recent Carney report (Victoria) and its recommendations are discussed.
The final chapter deals with the magistracy today and in the future. The author contends that the introduction of the computer into lower court systems is imminent and predicts that profound changes will take place. At first the computer will be an administrative tool and effect savings in court time and costs. Eventually it will prove to be a profoundly important method of evaluating the effectiveness of legislation. In order to take advantage of its research potential the adversary system in the lower courts requires evaluation and planning. An office of research will be necessary in each Australian jurisdiction. Such evaluation and planning has already begun in Victoria.
The author contends that the recent achievement of magisterial independence in all Australian jurisdictions except Queensland has brought to light problems not hitherto fully appreciated. Because the government still has firm control over the purse strings, magistrates have de jure but not de facto independence and the possibility of undue influence is still possible. The control of listing of cases before magistrates is another area where undue influence may be exercised as recent events in New South Wales have disclosed. It is the author's contention that modern computer technology can assist to overcome this problem.
Finally, the author contends that hitherto a lack of planning has been the main feature of magisterial jurisdiction in Australia. Other jurisdictions must begin to follow Victoria's lead.