ACT Chief Magistrate Lorraine Walker has provided a swingeing and comprehensive review of the Territory’s Magistrates Court Act, finding it out of date and unaligned with both current practice and community expectations.
The review draws on the work of the beleaguered Walter Sofronoff, who ran the Board of Inquiry into the Criminal Justice System in the ACT, and finds that the “particularly thorny aspect” of just when a criminal proceeding begins is currently “convoluted”, leaving it “difficult to conceive of any real benefit in maintaining the [current] form of such processes”.
Many of the “odd” provisions in the Magistrates Court Act likely owed their existence to issues from the “distant past”, leaving those now before the courts perplexed by the “sheer mystery” of it all.
In a startlingly direct and highly readable article in the most recent edition of the ACT Bar Bulletin, Chief Magistrate Walker nominates seven key areas for reform in what would be an admittedly “significant undertaking”.
“It is an opportunity to equip the ACT’s busiest court with a modern, coherent and future-ready statutory foundation,” Her Honour wrote.
The complete article is below:
The Magistrates Court Act 1930 (ACT) has served as the statutory backbone of summary justice in the Territory for nearly a century. But it has osteoporosis and is at risk of
fracture.
A review of the Act exposes some aspects of concern and the need for reform.
In Board of Inquiry into the Criminal Justice System in the ACT, headed by Walter Sofronoff, evidence was received from police and prosecutors about their understanding of the standard of evidence required to commence proceedings.
The Magistrates Court Act 1930 (the MCA), s26 provides:
“An information may be laid before a magistrate in any case where a person has committed or is suspected of having committed, in the ACT, an indictable offence or an offence that may be dealt with summarily as provided in section 19.”
The evidence received in the Inquiry made it abundantly clear that this little gem of a section was not helpful, and indeed likely inconsistent with the current legal position.
Mr Sofronoff’s first recommendation, which was accepted by government, was that “in consultation with the Office of the DPP, the ACT Police formulate a policy to define the threshold to charge and the considerations which should inform a police officer’s application of the threshold to a given case.”
The significance of bringing criminal proceedings against a person is such that it may be thought appropriate to enshrine this test in legislation. That is what s26 purports to do.
But not clearly. And not in accordance with current community and legal expectations.
A particularly thorny aspect of criminal process is the question of when a criminal proceeding begins.
Harking back to s26 of the MCA and its reference to “an information” immediately identifies an example of the opaque nature of current practice. What constitutes “an
information”? Who is properly an “informant”? When is an information “laid”? What is the significance of a matter commencing by way of court attendance notice,
information and summons or charge? These questions lead to fascinating avenues of historical enquiry. Unfortunately, the results do not, in my view, explain the present
convoluted approach to commencing proceedings. Nor does a clearer understanding of the ancient origins of the various processes allow any meaningful comparison with
current practice. There is little comparison between an unfortunate police officer walking over a pile of “informations” about which he knows nothing, and signing them in front of a relatively junior public servant, with the earlier function of an informant who personally knew details of the allegation and presented them to the public official who could then further investigate or determine the allegation. It is difficult to conceive of any real benefit in maintaining the form of such processes absent concomitant substance.
The MCA contains numerous odd provisions, probably reflective of issues that arose at some stage in the distant past. For example, s49, which authorises a magistrate to issue a warrant on a Sunday. It does not say anything about 2 a.m. but perhaps that should be inferred.
Or s54 which provides that “the court must hear and decide an information if both parties to the information appear personally or by lawyers or anyone else appearing for them”, a questionable provision which, again, is inconsistent with current practice.
Based upon it, a person could argue that they should have their matter determined in their absence if, for example, they send their accountant, or their football coach or,
indeed, “anyone else”.
Section 67 deals with procedure following the arrest of a person on warrant. It includes a provision at subsection(2)(b) “if the court is not sitting at the time the officer is able to bring the person before the court — by telephone call made by the officer to a magistrate to report the execution of the warrant to the court”. This begs the question, to what end?
Another hangover, I assume, from a different place and time is this, at s88: “If, on the return of any summons or at any adjournment of the hearing or at the time to which the
hearing is postponed, a magistrate is not present, the registrar may, and after the lapse of an hour, at the request of the informant, must, postpone the hearing until the next
day when a court will be held at the place mentioned in the summons or to which the case has been so adjourned.” This was perhaps replicated from legislation dealing with
geographically dispersed, recalcitrant magistrates who sometimes slept in, perhaps after a catch-up with the visiting assize judges.
Then we have the quite recent attempts to streamline the committal process, sections 88A and 88B. Sadly these facilitative provisions have merely muddied the stagnant lake of committal which is Part 3.5 of the Act. Of course, lawyers and jurists make it work but the sheer mystery would, I fear, defeat an unrepresented person.
Then there are those provisions which deal with part of the subject they address and leave the rest to the imagination, such a s94(1)(a) which deals with when a person is to
be committed for trial or discharged. It provides:
(1)
When all the evidence for the prosecution and the defence has been taken in relation to the indictable offence with which the accused person is charged,
the court must—
(a)
if the court is satisfied, having regard to all the evidence before it, that there is no reasonable prospect that the person would be found guilty of an indictable offence — if the person is in custody in relation to the offence, immediately order
that the person be released from custody in relation to the offence; or
(b)
if the court is not satisfied as mentioned in paragraph (a)—commit the person for trial.
But what if there is no reasonable prospect and the person is not in custody but say on bail? Of course, in both instances, the person is “discharged”. But one has to read
between the lines to come to that conclusion.
There are provisions in which the language is simply disconsonant with current practice, such s113:
Proceeding at hearing on defendant’s confession
If the defendant is present at the hearing, the substance of the information must be stated to the defendant, and the defendant must be asked if the defendant has any cause to show why the defendant should not be convicted or why an order should not be made against the defendant, and if
the defendant has no cause to show, the court may convict the defendant, or make an order against the defendant accordingly.
The Registrar’s role is not entirely clear under the MCA either. This is a challenging role in which administrative and quasi-judicial functions repose. The complexity inherent in
this should be clearly addressed in the source legislation. Certain specific responsibilities could be updated also, especially as the Act does expose the Registrar
personally to criminal sanction at s191:
Every registrar and person in charge of a correctional centre must keep a true and exact account of all amounts received by him or her under or because of any conviction or order, showing the people from whom and the time when the amounts were received and to whom and when the amounts were paid.
Maximum penalty: 1 penalty unit.
I hope [Court Registrar] Ms Banks has a large register and a reliable time piece!
There is provision in s316 for proceedings to be recorded “by means of short-hand” (amongst other means).
And there are aspects of the MCA which overlap with and are more properly dealt with in specific acts, such as aspects of bail.
Whilst the Act has been amended many times, its underlying structure reflects an era in which court operations, technology and community expectations were markedly different. The contemporary Magistrates Court, handling the overwhelming majority of criminal matters in the Territory, a substantial civil jurisdiction, a huge protection order jurisdiction, evolving industrial and youth jurisdictions applications, and an expanding therapeutic justice role, now operates within a legislative framework that has, in parts, become conceptually outdated.
Updating the Act would not simply be an exercise in legislative housekeeping; it would meaningfully support efficiency, accessibility, and fairness in the ACT justice system.
There are key benefits which may be anticipated in updating the Act.
1. Modernisation would clarify jurisdiction and procedural powers.
The Act’s current structure distributes jurisdictional provisions across the 1930 statute, the Crimes Act 1900, Legislation Act 2001, Court Procedures Act 2004, Children and Young People Act 2008 and Court Procedures Rules 2006.
A modernised act could consolidate jurisdictional limits and procedural powers in one coherent framework, remove outdated language and concepts no longer used in
contemporary summary procedure.
For practitioners, especially those new to practice in the ACT, such consolidation would reduce interpretive ambiguity and simplify advice on jurisdiction, powers of the court, and procedural pathways.
2. Stronger integration with contemporary court procedures.
Since 2004 the ACT has moved towards a uniform, modernised procedural system. The Magistrates Court, however, still relies on a statutory foundation drafted long before the creation of this contemporary procedural framework.
Updating the Act would align statutory provisions with a modern case management approach reduce duplications or conflicts between statutory procedural powers and
those confirmed by rules.
Such alignment would enhance procedural predictability, benefiting both lawyers and unrepresented parties.
3. Improved capacity for digital and technological innovation.
The Act was drafted in an era of paper dockets and handwritten warrants. There is a clear need to adapt to the availability of electronic processes, particularly in relation to
commencement of proceedings and service.
A revised act could expressly support electronic filing, electronic warrants, digital transcripts, and, where appropriate, virtual hearings, establish clear statutory authority for digital service and authentication mechanisms and enable future technology – rather than requiring continuous piecemeal amendment to keep pace.
This would reduce administrative burdens, support more efficient case management, and future-proof the courts operational capacity.
4. Enhanced support for therapeutic and problem-solving jurisdictions.
The Magistrates Court increasingly operates specialised lists such as the Galambany Circle Sentencing Court, the Warrumbul Court and the Care and Protection Intensive
List that rely on flexible, forward-looking judicial powers and supportive registry capabilities.
A modernised Act could clarify and strengthen the court’s ability to operate therapeutic or problem-solving jurisdictions and provide a sound legislative basis for such
approaches.
Such reform would embed contemporary justice philosophies more securely into the
statutory framework.
5. Streamlined enforcement and compliance mechanisms.
The Act currently contains legacy provisions regarding fines and enforcement (remember Ms Banks’ timepiece).
Redrafting the Act would allow the Territory to rationalise enforcement mechanisms and simplify the court’s operational processes for compliance monitoring.
This would reduce procedural complexity and improve outcomes for both defendants and the wider community.
6. Increased accessibility and public comprehension.
A statute drafted nearly a century ago inevitably contains outdated structure and language.
Modern drafting standards promote plain English, intuitive structure, clear articulation of rights and obligations, and more transparent procedural pathways for unrepresented
litigants.
Given the high proportion of unrepresented defendants in the Magistrates Court, a clearer legislative framework would have tangible benefits for fairness and efficiency.
7. Better alignment with human rights and contemporary values.
Since the passage of the Human Rights Act 2004, our courts operate in a statutory human-rights environment that did not exist when the Act was drafted. Updating the
Magistrates Court foundational statute offers an opportunity to expressly incorporate human-rights consistent decision-making frameworks. This alignment would strengthen the legitimacy and transparency of summary justice processes.
Conclusion
Revising the Act would be a significant undertaking. It would, however, be more than a technical legislative exercise. It is an opportunity to equip the ACT’s busiest court with a modern, coherent and future ready statutory foundation. Whether enhancing technology uptake, strengthening therapeutic justice, improving clarity, or aligning with contemporary values, updating the Act would deliver meaningful benefits to practitioners, the judiciary, and the community. A modern Magistrates Court requires
modern legislation, and comprehensive reform would position the ACT to continue delivering responsive, efficient and principled summary justice for decades to come.
