Neil Sands
Giving community magistrates the power to impose prison terms will “cross a constitutional boundary”, threaten defendants’ right to a fair hearing and damage the reputation of New Zealand’s justice system, some of the country’s top legal bodies have warned.
In a bid to reduce court backlogs, the government’s Community Magistrates Legislation Amendment Bill proposes expanding the remit of community magistrates so they can preside over judge-alone trials of category 2 offences punishable by a prison term of three months or less.
But legal groups – including The Law Association, the New Zealand Law Society (NZLS), the Defence Lawyers’ Association (DLA), and Community Law Centres Aotearoa – strongly oppose the move, saying community magistrates are not required to hold legal qualifications and that handing them the power to deprive citizens of their liberty represents an unprecedented infringement of a core judicial function.
Elizabeth Hall
DLA co-chair Elizabeth Hall said presiding judicial officers in the family, employment and coroners jurisdictions all need legal qualifications and it did not make sense to have non-qualified community magistrates determining guilt in cases carrying terms of imprisonment.
“You just have to step back and think how members of the public will look at that,” Hall told a Justice Select Committee hearing into the bill. “If someone has been convicted and sentenced to imprisonment by a community magistrate, the first thing that they’ll be saying is: “Well, this is rubbish. The person wasn’t even a lawyer. They didn’t even have a law degree and now they’re going to send me to jail!”
Expertise needed for complex cases
Samira Taghavi
The Law Association vice-president Samira Taghavi said community magistrates had a role in the justice system and there was no concern about them dealing with cases and issuing fines.
“But once the Parliament moves beyond fine-only offending and allows a person who’s not required to be legally qualified to determine contested criminal guilt for something which is imprisonable, whether it’s three months or not, we say an important constitutional and institutional boundary has been crossed,” she told the committee.
Taghavi said offences carrying a three-month term could be extremely complex, even though they attracted a relatively light sentence.
“For instance, drink driving can involve highly technical questions concerning statutory interpretation, procedural compliance, evidential presumptions, admissibility, improperly obtained evidence, identification and expert or technical evidence on the Land Transport Act and the Evidence Act. A judicial officer must be able to identify these issues,” she said.
Hall made a similar point, arguing that community magistrates would be considering matters that were beyond their expertise.
“There are lawyers in New Zealand that specialise in traffic matters because of the complexity that’s involved in in traffic legislation… We (lawyers) often find that you go down to court for something that you think is reasonably open and shut, then next minute you’re knee-deep in access to justice, human rights issues, and before you know it, you’re in the Court of Appeal.”
Damaging perception
Karen Hodgson, the law reform coordinator for Community Law Centres Aotearoa, said there had been widespread concern among her members.
“In particular, the perception of what it will look like for our criminal justice system,” she said. “Also any difficulties that are encountered in terms of the expertise, the skill, and the judgment that’s required. Any missteps in those areas are likely to affect those groups that are overrepresented, including Māori and Pasifika people.”
In a written submission to the select committee, the NZLS said some of the cases before community magistrates might involve issues requiring “nuanced legal and factual assessments that are more appropriately reserved for judicial consideration”. It recommended removing the relevant clause from the bill.
The Law Association’s criminal law and public law committees said in a joint submission that any shortage of judicial officers should be solved by appointing more judges, not lowering the threshold required to deal with contested criminal cases.
They submitted that if the proposal proceeds, community magistrates must meet minimum qualification criteria, including admission as a barrister or solicitor of the High Court, a “substantial period” holding a practising certificate, demonstrated litigation and courtroom experience and familiarity with criminal law, criminal procedure and the Evidence Act 2006.
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