By Aja Styles
Shadow attorney-general Nick Goiran has labelled a Magistrates Bill before Parliament a “repugnant piece of legislative cake” that was created over a case where allegations of evidence tampering and bullying within the judicial bench was never resolved.
His comments come on the back of the Law Society of Western Australia urging the state government not to pass the bill this week as it would allow the Children’s Court president “unfettered, non-reviewable” power over their magistrates.
Interference in administration of justice? Last year’s case involved the Attorney-General John Quigley; Children’s Court Magistrate Catherine Crawford and Children’s Court president Hylton Quail.
Amendments to the Magistrates Bill of 2021 states the president would have “absolute discretion and is not required to take into account the seniority or length of service of the magistrate or any other matter” in directing whether a particular magistrate shall no longer perform duties under their commission in the Children’s Court.
The amendments, which will also be inserted into the Children’s Court of Western Australia Act of 1988, were brought about because of a workplace bullying claim brought by Perth Children’s Court Magistrate Catherine Crawford against the court’s president Hylton Quail last year.
The case was brought when Judge Quail sought to move Ms Crawford to the adult magistrates court outside his administrative powers.
The matter was dropped on the second day of a trial which had already begun to paint Ms Crawford as a bully herself, who also allegedly doctored expert reports put into evidence at her hearings.
The trial was yet to hear from a retired Children’s Court president, Denis Reynolds, and the former president-turned-District Court Chief Judge, Julie Wager, and court staff.
According to a Law Society letter addressed to the government, the amended bill would “potentially imperil judicial independence of decision making by depositing power in one individual” and possibly affect operation of courts contrary to Chapter III of the Commonwealth Constitution.
Law Society WA president Rebecca Lee and her executive remained concerned that particular provision allowing the president discretion over “any other matter” relating to a magistrate in the Children’s Court would affect more than the administration of the court, and could lead to workplace bullying.
“By voting in favour of the Bill, you are in effect being asked to support the devolution of power to one judicial officer, over the state’s granting of a commission, in a way which means that if the president took a view on criminal sentencing ... or how to exercise the ‘protection and care’ jurisdiction in relation to vulnerable children, then magistrates who do not ‘fall into line’ could be removed by the president without challenge,” she wrote.
“It may be that the decisions in each individual matter may be appealable, but this would place an increased burden, which could not be currently borne, on the judicial system.
“In any event, the stain on the state for failing to protect judicial independence would remain.”
She reiterated that the society did not take issue with provisions that empowered and enabled the president to direct the efficient management and administration of the court – such as that a specific Children’s Court magistrate is to sit at Joondalup every second Tuesday – but wanted to be consulted over the impacts to independent administration of justice in the community.
In light of the Law Society’s letter, Mr Goiran called out the government for acting on legislation that could be deemed unconstitutional while ignoring the events of last year’s case between Judge Quail and Ms Crawford.
“It is extraordinary to pause and reflect on the arrogance of the McGowan Labor government which sees it not merely resurrecting a bill that interferes with the independent administration of justice, but astonishingly sees it listed as its second highest priority for the resumption of Parliament,” he said.
“The only thing worse is that the allegations made in last year’s trial, of evidence tampering and bullying, remain unaddressed by our Attorney-General who has told Parliament it is not appropriate for him to address matters involving individual judicial officers. If not him, then who?
“Meanwhile the icing on this repugnant piece of legislative cake is that the secrecy-obsessed McGowan government refuse to disclose what the Chief Justice, the Chief Judge and the Chief Magistrate have said about this legislation.”
He has called for the bill to be referred back to the Legislation Committee for inquiry.
“Parliamentarians cannot be expected to make a reasonable decision about legislation impacting the independence of the administration of justice while the executive conceals feedback from the judiciary, leaving allegations of misconduct as the only feedback on the record,” Mr Goiran said.
The bill has already passed through both houses, controlled by Labor, with its final enactment just a matter of time.
A spokesperson for Attorney-General John Quigley said the notion the bill interfered with judicial independence was entirely without merit and the Attorney-General fully respected the independence of the judiciary.
“The bill confers upon the President of the Children’s Court the same administrative authority over the allocation of judicial resources in that court, as the authority that the Chief Magistrate has in respect of judicial resources in the court of which he is head of jurisdiction,” the spokesperson said.
“This bill is only concerned with the administrative powers of the independent heads of jurisdiction in the courts over which they preside.
“The bill seeks to ensure that court jurisdictions in Western Australia are efficient and flexible, with appropriate powers allocated to the respective heads of jurisdictions to manage the workload of the courts.”