Resources and media for the Criminal Procedure Review—Magistrates Courts

Hello. I'm Michael Shanahan. Firstly, I'd like to pay my respects and recognize the Traditional Owners of the land and pay my respects to the Elders and Respected Persons, past and present. Previously, I was a District Court Judge for 20 years and, as part of that, the President of the Children's Court for seven years. I retired in 2019. Earlier this year, I was asked if I'd come back and review the criminal procedure laws in the Magistrates Court.

The Queensland Government made a promise to look at these laws at the last state election. Basically, my job is to review the Justices Act 1886 and to work out what the new criminal procedures laws for the Magistrates Court should be. I agreed to the review because it is important work that needs to be done. I've been appointed by the Attorney-General to this role, but I am independent.

I don't work for the government or the courts. My instructions are in the terms of reference, which you can find on this website. The terms of reference set out what the Attorney-General has asked me to do. In general terms, I'm asked to consult; to talk with a wide range of people; to understand what the current problems are with the laws; and consider the information and ideas to look at solutions and make decisions about the way to improve criminal procedure in the Magistrates Courts.

I've been asked to focus on making the laws more modern and coming up with ways that they can operate better. I will talk more about that soon. First though, I think it is useful to give you some background about the legislation and the courts. I'm going to give you a brief outline about the Justices Act and its purposes as this explains why we are looking at it.

Firstly, it is important to know what the Act does. The Justices Act 1886 sets out the way criminal proceedings are dealt with in the Magistrates Court. When I say criminal proceedings, I mean when a person has been charged with a criminal offence or offences—that is often by the police but not always—and comes to court for the charges to be prosecuted and heard and decided by the Magistrate. The Justices Act contains all the rules for how the charges start, how the court can deal with them and the powers it has in doing so.

For example, to conduct hearings, trials, to hear pleas of guilty, to adjourn matters, to sentence people or to close the court on occasions. The Magistrates Court plays an important role in Queensland's criminal justice system. It is the first tier in the justice system in Queensland. It is extraordinarily busy and it deals with a broad range of matters. All criminal charges start here and most offences are finalised in the Magistrates Court.

More serious offences are transferred from the Magistrates Court by what's called a committal process to the District or Supreme Courts. The procedures, the way the court operates, uses the procedural laws created in the late 1880’s. While the Justices Act has been amended over the years, it has never been fully reviewed. The Justices Act is about 135 years old.

It is older than zippers, older than the Commonwealth of Australia, and it is written for another time. The term itself—Justices Act—relates to Justices of the Peace. So, in effect, today most matters are decided by Magistrates. So, the name of the Act itself shows how old it is. You'll see in this slide an example of what I mean.

This is a random section in the Justices Act. It is about allowing for an adjournment, if the charge is amended. You can see it is also one very long sentence and if I was you, I wouldn't attempt to read it. You can see how difficult the Justices Act is to understand, and how odd it is for the busiest court, dealing with most criminal matters, to be using that Act, which was drafted in 1887, when society and expectations about the courts were very different. Before I go into more detail, I feel it is important to be clear what is in scope of this review and what is out of scope.

The review is only looking at criminal procedures and only those in the Magistrates Court. It is not about procedures in the District or the Supreme Courts, which are the higher courts. It is not reviewing the criminal justice system, the way the police operate, or about access legal representation. It is not reviewing sentencing laws, such as the penalties the court can give.

Finally, it will not be reviewing court procedures applied to children charged with crimes. Those are dealt with separately in the Youth Justice Act 1992. My task is to make recommendations to help create new legislation to one day replace the Justices Act. My instructions focus the review on recommending modern, clear and simple procedural laws, which consider the needs of court users, protect and promote human rights, and enable better participation.

I should also mention I've been asked to consider whether the Magistrates should be renamed Local Court Judges and Magistrates Courts called Local Courts. I'm asked to recommend new procedural laws that have a contemporary and effective policy basis. We know the world and Queensland has changed since the time the Justices Act was created. The review is looking at ways to make Magistrates Court criminal procedure laws more modern and work better.

There are some things in our instructions that tell us what to consider, such as making laws that consider human rights, victims’ rights, increased use of technology and focus on the court users. We also know the court users have changed and that some people, such as women, people with a disability, people from culturally and linguistically diverse backgrounds and First Nations people have particular needs and vulnerabilities.

The review wants to take into account the needs and preferences of vulnerable people who come before the Magistrates Courts. We also acknowledge that Aboriginal and Torres Strait Islander peoples are overrepresented in the criminal justice system. As I undertake this review, I am asking for your insights and feedback into what would make the Magistrates Court criminal procedures more modern and work better.

I would like to hear from you how the court procedures could be improved. We have thought of some questions as a prompt for discussions and your thoughts. The list is not a full list. Here are the types of things I particularly want to know from you about what is needed to make criminal procedure laws in the Magistrates Court more modern.

What changes would make Magistrates Court procedures work better? Would you like to see in the Magistrates Court criminal procedures, better enablement of participation and fairness for all court users in criminal procedures? What would you like to see more of? What would work better? What is needed? How can procedures be improved to ensure understanding of court processes? How do you think the courts could operate better?

How can criminal procedures consider the particular needs and preferences of vulnerable people? I'm also looking at what other Australian states and territories are doing in their procedural laws. Many of them have introduced recent amendments and Acts to become more modern. The law in Queensland protects and promotes fundamental human rights. Rights relevant in this review include, for example, every person is equal before the law;

the right to a fair hearing; and the rights or guarantees in criminal proceedings. For example, people should know what they are charged with, be able to defend themselves and have legal assistance. We need to consider people's human rights throughout this review. We encourage you to think about human rights in making your submissions.

My task is to make recommendations that sets out the criminal procedures from the beginning to the end of the process in the Magistrates Court. I am looking at a range of specific criminal procedures, issues that need to make up any new legislation. I'm going to outline some of the questions I have for you now. One of the matters I am considering is whether there should be guiding principles in the Act.

These can help explain what the law is trying to do or help with decision making. Some principles relevant to this topic might be: procedures should be fair for both victims and defendants; matters should be dealt with in a timely manner; things should be simple and easy to understand; procedures should be culturally appropriate and respond to people's needs. I want to hear from you about what kinds of principles you think are important to criminal procedures.

I am also looking at how the Magistrates Courts can better use technology. Criminal procedure laws often set out the rules for serving, signing and filing important court documents and allow people to appear in court by phone or by video. In Queensland, the Justices Act doesn't always allow the courts to use this sort of technology. I'm interested in how you think technology could be better used in the Magistrates Court.

Could things be made better if we used electronic systems? Would there be problems? I'm also thinking about better ways to start a criminal proceeding for people other than by police officers. The Justices Act says that matters can be started using a written document called a ‘Complaint and Summons’. The requirements in the Justices Act appear outdated and the process itself can take a long time. Other legislation lets police start proceedings by giving a person a notice to appear that they must come to court.

I want to explore how to simplify the current process under the Justices Act to make sure it works better. Some other possible changes we want to hear from you about are the ways that adults who are charged with an offence can be diverted out of the court system instead of being convicted and sentenced. The Justices Act currently allows for mediation.

I would like to hear from you about what you think about the existing mediation laws. Do they work? What changes could be made? There are other ideas, such as in-court based diversion programs. This idea is used in Victoria. Briefly, following certain requirements being met, such as acknowledgment of responsibility about the offence and with the consent of the person charged,

that is the defendant, and the prosecutor, the court can adjourn charges for up to 12 months to allow the defendant to participate and complete certain ordered obligations. I want to hear what you think about this idea. What would work and what issues need to be considered? If the process is successful, the person doesn't get convicted or sentenced. Because this is an historic review for the Magistrates Court and an opportunity to consider change and modernization,

I’ve also been asked to consider, firstly, whether the Magistrates Court should change its name to the Local Court. And secondly, if Magistrates should be called the Local Court Judges. There are arguments for changing and for keeping the names. Some say Magistrate is an outdated term and changing to Judge helps with understanding about the law and who administers it. I'm interested in hearing your feedback on that topic.

The review has a consultation paper that asks these, and a range of other specific questions, about criminal procedures in the Magistrates Courts. I invite you to make a submission. I'm keen to hear your feedback and suggestions to improve criminal procedures in the Magistrates Court. Submissions close 30 June 2022. A copy of the discussion paper can be emailed to you or downloaded from our website.

In making your submissions you can respond to some or all the questions. There might be other relevant issues not covered that you want to tell us about. You can also just give us general feedback relevant to the review by 31st August 2022. You can make a submission or give us your feedback in an email. Our email address is on the website.

You can also send us a video, if you prefer to give your feedback in this way. Information about how to do that is on the review’s website. There are also concerns and privacy issues that you might have. Information about that is also on the website. It is only with your assistance that we can better understand the issues and identify solutions. In terms of timeframes, I have about a year to conduct the review and provide my report to the Attorney-General.

My report will guide the preparation of the new legislation and is the first step in this significant work reviewing the way criminal charges are dealt with in the Magistrates Courts in Queensland. Thank you for watching this video. I look forward to your submissions about ways to create more modern and better criminal procedures laws for the Queensland Magistrates Court.