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Magistrate maintains exile from Children’s Court was unfair
A Perth magistrate who claimed to have been unfairly exiled from the Children’s Court has appealed against a finding that heads of jurisdictions have the power to move judicial officers without consent.
Naomi Neilson
Magistrate Catherine Crawford returned to the Federal Court following an unsuccessful attempt to challenge a 2022 decision of Perth Children’s Court president, Judge Hylton Quail, to shift her out of the Children’s Court and into the Magistrates Court of Western Australia.
Due to the method in which magistrates are appointed in Western Australia, Crawford was dually commissioned to both courts.
At the crux of Crawford’s submission on appeal was only the governor can move a magistrate, and it must be with their consent.
“There’s good constitutional reason for that,” Crawford’s counsel, Patricia Cahill SC, told Chief Justice Debra Mortimer, Justice Angus Stewart, and Justice Michael O’Bryan on Friday (22 November).
Cahill alleged Justice Nye Perram, who made the original decision in March, made an error in his construction of the Children’s Court Act.
This error was “fundamental” because it had the effect of “obscuring an important feature of the legislative amendments”, being the security of tenure and judicial independence, Cahill alleged.
Cahill further alleged that prior to the Magistrates Courts Act amendments, there was no power for a head of jurisdiction, like Judge Quail, to direct a magistrate to sit on reduced hours, then not at all.
“When it is considered against that background … the Magistrates Courts Act would not extend to permitting the head of jurisdiction to take such steps without the consent of such magistrate,” Cahill said.
Referring to Judge Quail’s reference to the workload needs, Cahill alleged there was no reference to this in the provisions and the removal of magistrates on those grounds “could create a real risk to judicial independence because it compromises security of tenure”.
In response, Craig Bydder SC, on behalf of the state of Western Australia, said Crawford’s construction of the act would allow a judicial officer to “stymy” the management of the court’s workload.
“Not only that, it leaves an important element as to how work is to be allocated in that court, not by the head of jurisdiction but to the governor. [This] could hardly be more antithetical to the institutional independence of the court,” Bydder said.
At the time of Justice Perram’s decision, there were 58 West Australian magistrates who held commissions in both the Children’s Court and Magistrates Court. Of those, 50 sat full-time in the Magistrates Court, seven in the Children’s, and one was casual.
Bydder said each of the 57 held a dual commission.
“I would ask the question of Your Honours, why should the question of where the magistrate sits require the magistrate’s consent when they have accepted both commissions? Section 12A and section 25 [under the legislation] recognise that is a decision to be made by the relevant heads of jurisdiction,” Bydder said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
