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Report Details


Committee Name:

Legislation Committee (2001 - 2005)

House:

Legislative Council
Report Type:Report

Title:

Magistrates Court Bill 2003, Magistrates Court (Civil Proceedings) Bill 2003 and Courts Legislation Amendment and Repeal Bill 2003
Report No:22
No of Pages:117
Physical Location:Legislative Council Committee Office

Presentation Date:

09/28/2004
Inquiry Name(s):Magistrates Court Bill 2003, Magistrates Court (Civil Proceedings) Bill 2003 and Courts Legislation Amendment and Repeal Bill 2003


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Hide details for Executive SummaryExecutive Summary

1. On June 29 2004, the Magistrates Court Bill 2003, the Magistrates Court (Civil Proceedings) Bill 2003 and the Courts Legislation Amendment and Repeal Bill 2003 were referred to the Standing Committee on Legislation with the direction that the Committee give priority over other business to consideration of the Bills.

2. Based on the parliamentary debate regarding the referral, the Committee understands that the purpose of the referral was that it consider a discrete number of issues. Consequently, the Committee resolved to address those issues canvassed during the second reading debate and raised by the submissions and conducted its inquiry accordingly.

3. The three Bills are part of a broader legislative package. The other bills in the legislative package are the:
    Justices of the Peace Bill 2003;
    Civil Judgments Enforcement Bill 2003;
    Oaths, Affidavits and Statutory Declarations Bill 2003; and
    Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Bill 2003.

4. In the Second Reading Speech relating to the Magistrates Court Bill 2003, Hon Nick Griffiths MLC, the Minister for Housing and Works representing the Attorney General stated that the legislative package will modernise Western Australia’s lower court system by:
    establishing a new Magistrates Court - amalgamating Courts of Petty Sessions, the Local Court and the Small Claims Tribunal;
    carrying out 221 Law Reform Commission of Western Australia recommendations; and
    creating 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.

5. The Committee has addressed selected issues raised in the submissions and the second reading debate and has recommended amendments to each of the Bills.

6. The Committee particularly draws the attention of the Legislative Council to Recommendation 5 which proposes amendments to Schedule 1, clause 14, of the Magistrates Court Bill 2003. Schedule 1, clause 14, relates to the suspension of magistrates from office due to substandard performance. The Committee received a number of submissions raising serious concerns about the effect of this clause on judicial independence.

7. In addressing the issues raised, the Committee has considered and agreed to the following clauses without amendment:
    Magistrates Court Bill 2003 - clauses 15, 26 and 31; Schedule 1, clause 11(1)(a); and Schedule 2; and
    Courts Legislation Amendment and Repeal Bill 2003 - clause 43.

8. The Committee has recommended amendments to the following clauses:
    Magistrates Court Bill 2003 - clauses 27 and 33; and Schedule 1, clauses 2, 13, 14 and 17;
    Magistrates Court (Civil Proceedings) Bill 2003 - clauses 25, 30 and 31; and
    Courts Legislation Amendment and Repeal Bill 2003 - clauses 146 and 147.

Recommendations

9. Recommendations are grouped as they appear in the text at the page number indicated:

Page 12

Recommendation 1: The Committee recommends that clause 27(3) of the Magistrates Court Bill 2003 be amended to enable the Chief Magistrate to issue administrative directions to registrars. This can be effected in the following manner:

Page 16, line 24 - To insert after “magistrate” -

“ and registrar in the exercise of the Court’s judicial functions ”.


Page 18

Recommendation 2: The Committee recommends that clause 33 of the Magistrates Court Bill 2003 be amended to allow wider access to the court record in criminal proceedings. The statutory amendments required to effect this change are set out in Appendix 3.


Page 22

Recommendation 3: The Committee recommends that Schedule 1, clause 2(2)(a) of the Magistrates Court Bill 2003 be deleted to remove the requirement that to be qualified for appointment as a magistrate of the Magistrates Court a person must be or have been a practising barrister of the High Court of Australia, or a legal practitioner. This can be effected in the following manner:

Page 28, lines 19 and 20 - To delete the lines.


Page 27

Recommendation 4: The Committee recommends that Schedule 1, clause 13 of the Magistrates Court Bill 2003 be amended to remove references to a magistrate being “suspended” with those references to be replaced with “relieved from duties” so that it reads as set out in paragraph 3.32. The statutory amendments required to effect these changes are set out in Appendix 5.


Page 35

Recommendation 5: The Committee recommends that Schedule 1, clause 14 of the Magistrates Court Bill 2003 be amended so that it reads as set out in paragraph 3.68 and incorporates the amendments referred to in paragraph 3.66. The statutory amendments required to effect these changes are set out in Appendix 6.


Page 37

Recommendation 6: The Committee recommends that Schedule 1, clause 17 of the Magistrates Court Bill 2003 which proposes to change the title and form of address for magistrates from “Your Worship” to “Your Honour” be deleted. This can be effected in the following manner:

Page 37, lines 7 to 10 - To delete the lines.


Page 51

Recommendation 7: The Committee recommends that clause 30 of the Magistrates Court (Civil Proceedings) Bill 2003 be amended as set out in Appendix 11 to address the matters set out in paragraphs 4.44 to 4.46.


Page 53

Recommendation 8: The Committee recommends that clause 25 and clause 31 of the Magistrates Court (Civil Proceedings) Bill 2003 be amended as set out in Appendix 12.


Page 57

Recommendation 9: The Committee recommends that clause 146(2) of the Courts Legislation Amendment and Repeal Bill 2003 be extended to relate to warrants of execution. This can be effected in the following manner:

Page 156, after line 33 - To insert -



(3) In subsection (2), a reference to a writ of fieri facias includes a reference to a warrant of execution issued out of a Local Court under the Local Courts Act 1904 .
”.


Page 63

Recommendation 10: The Committee recommends that clause 147(2) of the Courts Legislation Amendment and Repeal Bill 2003 be amended to provide that bailiffs (who are not police officers) currently holding appointments under the Local Courts Act 1904 are entitled to be appointed under the Civil Judgments Enforcement Bill 2003 for a period of five years. This can be effected in the following manner:

Page 158, line 2 - To delete “2” and insert instead - “5”.


Page 63

Recommendation 11: The Committee recommends that the Magistrates Court Bill 2003, the Magistrates Court (Civil Proceedings) Bill 2003 and the Courts Legislation Amendment and Repeal Bill 2003 be passed subject to Recommendations 1 to 10.