Officials considered hiring temporary magistrates to help ease court backlog crisis

Officials considered hiring temporary magistrates to help ease the backlog crisis, sparking fears they could become beholden to the government for a new contract.

The government has announced an extra $41m in funding to help clear case backlogs.

Senior legal officials considered hiring temporary magistrates to help ease the court backlog crisis plaguing Victoria’s justice system.

But the controversial contract arrangement was dropped after concerns were raised by prominent legal figures.

The Herald Sun can reveal the idea to appoint magistrates on short-term contracts was floated with members of the legal community.

Senior legal figures were sounded out about the move in the weeks before a job ad was posted online in August.

The Department of Justice subsequently advertised for magistrates on a three-year contract but later said the ad was published by mistake.

One senior court source said the move appeared to be a deliberate attempt to avoid incurring ongoing appointment costs.

“It completely overlooks the separation of powers and judicial independence,” they said.

“It was a terrible idea as it offends very basic principles. There are then two classes of magistrates, the permanents and the temporaries.

“The temporary magistrates are then subject to making politically correct decisions or risk being booted.”

The Magistrates Court of Victoria has revealed its pending case load is 111,740. Picture: David Crosling

Shadow Attorney-General Michael O’Brien said the plan would have destroyed judicial independence and further undermined public confidence in the courts.

“A judge can’t be independent if they’re looking over their shoulder wondering if a Labor government will renew their contract,” he said.

University of South Australia law professor Joe McIntyre said use of part-time judges was not a preferred model.

“It is well recognised that such models can create threats to judicial independence: temporary judges may aspire to full-time positions, creating a risk that they may distort their judicial performance to further such an opportunity,” he said.

“Such appointments effectively hang the sword of Damocles over the temporary judge’s head: keep the government happy if you want to have your job renewed, or be promoted.

“This threat to judicial independence should not be discounted, and it has seen Australia largely reject the model of temporary judges relied upon in England.”

Dr McIntyre said the cost of ongoing appointments could not be avoided.

The Herald Sun has revealed fears that it would take a decade to clear court backlogs.

Whistleblowers say the true number of outstanding cases is being misrepresented and the backlogs cannot be cleared without significant funds.

New figures released by the Magistrates’ Court of Victoria on Friday revealed its pending case load had fallen to 111,740 as at April 31 down from a peak of 145,512 in December 2020.
In the County Court about 1,400 trials are waiting to be heard.

The mammoth backlog was caused by ongoing pandemic restrictions during which courts ground to a halt.

The state government has announced an extra $41m in funding to help clear case backlogs.

A spokeswoman denied there was ever a plan to introduce temporary magistrates.

“Under legislation, the appointment of magistrates is until they attain the age of 70 years,” she said.

“A Magistrates Expression of Interest recruitment campaign launched online and in print last year in error referenced an appointment duration of two to three years, which was subsequently corrected to state the role as ongoing, and re-posted to reflect the standard duration for magistrates appointments.”