Quality of justice very strained

Her Highness was quite wrong. She is no more entitled to call herself, or to demand that others call her Your Honour than I am to be called Your Excellency. The Your Honour form of address is traditionally reserved for judges of superior courts of record, such as the Supreme Court. The creeping tendency, strongly lobbied for by socially and professional anxious magistrates, that they be regarded as professionally or socially equivalent ought to be strongly resisted, on principle as much as to give them a general squelching for their increasing distance from the communities they are supposed to serve.

I do not expect much help from the legal profession for this point of view. A senior lawyer agreed that magistrates had no right whatever to be called Your Honour. But he recommended that you do so if you want to suck up. Like all flattery, they love it laved on.

Lawyers anyway have a very privileged position in the ACT Magistrates court. Matters in which lawyers appear for both sides are given priority, and unrepresented members of the public have to wait until all of their needs, and even, if last Monday provided an example, the needs of unrepresented dead people, have been attended to. The magistrates apparently believe, foolishly, their clients benefit from lower charges as a consequence. But lawyers, magistrates and court staff are paid for being there (even when they are unaccountably absent) and that many of the mothers, children, tradesmen, doctors and other workers at court are not. By no means all of the civilians waiting around are defendants, but even defendants have rights. Equality before the law, equal access to it and respect for the civilians ought to have a place, one standing well ahead of any imagined need to get respect for participants in the sausage machine.

Yet few dare complain - not that they will get a hearing, if my experience is any guide - because of their unfamiliarity with the environment, their inability to understand what is going on, and a perfectly reasonable apprehension that they will somehow be punished for standing on their dignity, or demanding good service. They might well be. Over the years I have read and heard magistrates and court staff boast of how they put to the bottom of their list any defendants who upset the applecart.

Magistrates courts are supposed to be courts for the people. Traditionally they attend to more than 90 cent of legal matters in dispute, and are supposed to be the fountains of quick, cheap, efficient and low-formality justice. Speed and cheapness are vital ingredients going missing because of poor management and magisterial pretension.

The ACT courts are becoming more remote from the people they serve. There is much more emphasis on the comfort and the convenience of magistrates, the legal profession and court staff than the long suffering public. The deterioration in the efficiency of service is closely related to the relentless search by magistrates for higher status, even higher pay and conditions, less and less work to do, with more and more personal staff, and ever stronger marks of distinction separating themselves from the customer base. My experience of saying this is about 45 years, and many observers privately agree. It is, however, not worth their while to say so.

Magistrates were traditionally called Your Worship, like Lords Mayor (which they once often were), or, by lawyers who did not have to spend a good deal of their time grovelling before them, Sir, or Madam. Either is correct according to the standard books of protocol. The protocols helpfully on the court website, which says that Your Honour is appropriate, is wrong, reflecting hope rather than fact.

I have always disliked the “Worship” form, since it seems to suggest adoration of a god. In fact Worship, in context, comes from Worth-ship, and, strictly, implies nothing more than being a local worthy. One should show a magistrate and her or his court proper respect, but not of a sort that lifts them above their station within the community. Judges, by contrast with magistrates or justices of the peace, did not serve only geographic jurisdictions, and were servants of the king, not the local community.

There are some who link the status anxiety of Australian beaks to the time when, generally in the 1960s and 1970s, magistrates began to be recruited directly from the legal profession, rather than court hierarchies. A previous system, of supplementing legally-trained magistrates with the services of non-legally-trained justices of the peace in some courts, was dispensed with.

That was a time of fantastic increases in pay – almost to the level of, and pegged to, judges of the Your Honour sort. Their salaries - about the same as the deputy secretary of a commonwealth department, with immensely better security and hours - are fantastically high for the responsibility or calibre and type of work involved. It is one of the reasons why they want their remuneration placed alongside judges, often (entirely unlike magistrates) hard to wrench from lucrative private practice.

This new generation were progressively demanding and being given secretaries and associates, on the basis that they needed help in preparing judgments. Perhaps to justify this, they slowed down and began reserving judgments, virtually unheard of before. Will tipstaves be next? They sat for fewer hours and allocated themselves non-court time so that they could work on reserved judgments. They demanded that a host of matters beneath their dignity - ordinary traffic matters, for example - be removed from their purview into an unjust Kafkaesque hell so that they could concentrate on bigger things, more worthy of their learning and social aspirations. They put on robes, and not a few would love to put on wigs. In some states, if mercifully not the ACT, they have even persuaded parliaments to pass lipstick on a pig legislation requiring they be addressed as Your Honour.

It is no coincidence that this is occurring just as the magistrates courts are becoming much slower, much more expensive, have much more unnecessary and time-consuming formality, and that more magistrates are required to perform less work, individually or collectively.

The ACT Magistrates Court deals with about half the business it dealt with 40 years ago with at least twice as many magistrates. It is simply not true that this reduction in efficiency is a result of the fact the typical case is now more complicated, or that modern notions of what fairness requires means that courts must engage in much more formality or move more slowly. Indeed, there has never been a relationship between the quality of outcomes and the time taken to reach it, here or anywhere else.

Nor is it true that the quality of the judgments coming from the courts has improved by the manner by which magistrates now conduct longer hearings, ask for written submissions, and hand down written judgments, often ages after reserving. (My own personal record of waiting for a reserved judgment from an ACT magistrate is four years.)

In earlier times, professional magistrates sneered at reserved judgments and at those who were unable to hand down a quick ex tempore decision with reasons, including findings of fact and law. Their focus was on being accessible, in dealing with matters properly, promptly, efficiently and cheaply. Perhaps, in theory, a magistrate who agonised and spent hours on research and long citations might prepare a more technically correct judgment, but the quality of the justice done (assuming that it was more likely to be right, proper and just) had to be weighed against the expense, delay and lack of consumer understanding of what had happened and why.

The chasm between court and public is wider because of the antiquated technology of the ACT courts, a matter of poor management rather than executive stinginess. Computers have not made it to the magistrates desk, nor to case management. Scores of people spending collective hundreds of hours in effect queueing for the attention of a single person for undisputed matters such as adjournments and the settling of dates for hearing. The quality and quantity of informal – outside court – disposition of such matters have deteriorated, with the substitution of a registrar’s court which increases delay and inefficiency. Nor, if Monday is any guide, is the process much assisted by punctuality on the part of officials, or a helpful and democratic approach from court staff. When I approached one seeming to be managing the organisation of matters, I was told that she would deal with me, and other civilians, after she had dealt with the lawyers.

The court had demanded my appearance, and that of about 20 other unrepresented people, at 9am. The registrar showed at 9.15, and took 20 minutes to attend to the solicitors. With most of the rest, she did no more than put their matter over to a 9.45 list, a new queue in which they were again last. I was out of the court with a hearing date that in a reasonable system I could have arranged by phone with the prosecutor, after 90 minutes. That would have been about average, and by then the magistrate had yet to attend to a single unrepresented civilian from her 10am list. An average day, in short, with members of the public, including children, miscellaneous police and others hanging around a collective 100 hours or so for the cursory and not very judicial attention of a single magistrate. Those of the other magistrates not having a day to write judgments, or on holidays, were actually hearing matters, but the business of organising, arranging and managing the hearing lists is delegated to one person. Forty years ago, the magistrate managing the lists had a caseload at least twice as big, but would have seen and spoken to everyone within the first hour, and, by lunchtime, have dealt also with all bails and pleas of guilty.

For him the public came first - and lawyers a very distinct second - and he was quick, and very consistent, and was less often upset on appeal than any of his colleagues, including ones he often openly derided in his court as engaged in “fancy-pants” procedures. Canberra needs more of his philosophy, and less focus on inessentials.