The Courts Legislation Amendment (Magistrates) Bill 2021 – Potential ramifications for the independence of the judiciary

The Courts Legislation Amendment (Magistrates) Bill 2021 (Bill) was introduced on 23 June 2021. Yesterday the Law Society of Western Australia​ (Law Society) put out a brief statement when it became clear the Government was pressing for the Bill to be passed with what appears to be considerable speed.

The Bill will make important changes to the operation of the Children’s Court of Western Australia. That Court deals with some of the most sensitive matters of any Court. It is a critically important Court to the Western Australian community. Its jurisdiction is not limited to dealing with juveniles who are charged with criminal offences. It also has an important care and protection jurisdiction dealing with applications to take vulnerable children into State care.

Notwithstanding the Law Society’s call for consultation and review, the Bill passed the 3rd reading in the Legislative Assembly last night.

The Law Society has only briefly reviewed the Bill. The Law Society has not (at any point) been consulted by the Government in relation to the Bill. It appears from the debates in Parliament last night that the only consultation has been by the Solicitor General with the Chief Justice, the Chief Judge of the District Court, the Chief Magistrate, and the President of the Children’s Court.

The Hon Mia Davies (Leader of the Opposition) last night asked the Hon John Quigley (the Attorney General) whether in light of the Law Society position, the Government would agree to send the bill to the Legislation Committee for review.  The Attorney General gave no such commitment. The Law Society considers that regrettable. The Law Society repeats its call for wide consultation and careful scrutiny of this important Bill.

During last night’s debate the Attorney General also said the Bill has “nothing to do with the Law Society of Western Australia; this requirement is to do with the administration of the court.” The Law Society disagrees with the Attorney General. The President of the Law Society, Jocelyne Boujos responded to this statement as follows: “Anything that affects judicial independence (in the sense of independence from more senior judicial officers) affects the proper administration of justice in the community. That is of very direct relevance to the Law Society and its members. And the Community at large.”

The Law Society considers the Bill may have consequences that are not immediately appreciated.  At this time the Society neither supports nor opposes the Bill and asks the Government to reconsider the urgency of the Bill so that it may consult broadly, including with the Society, about the Bill, and/or submit to the Bill to scrutiny via a parliamentary committee.