30 January 2019
Popular culture has done the justice system few favours. TV crime shows have embedded many stereotypes in our collective subconscious — criminals, for example, are overwhelmingly young, male and probably not white. The CSI shows have given people the impression that fingerprint, DNA and psychoanalysis are infallible, while often persuading real-life jurors that a prosecutor’s case is far more solid than the evidence actually suggests.
More regularly, those shows obscure or minimise the places where most of our day-to-day law happens: our tribunals and magistrates courts. They might not look like our sexy courtroom dramas where imaginary and Hollywood-pretty lawyers try high-profile murder cases every week, but this is where the real work gets done most often (which isn’t to say there aren’t one or two of us who occasionally remind people of Denny Crane, me included, but that is a subject for another day!).
Dividing fence matters, minor criminal and civil claims, complaints to the building regulator — these are all dealt with at the coalface, and that coalface is ever-widening without much change in the number of those wielding picks.
As an example, consider building matters. Originally there was one dedicated building tribunal, with the equivalent of five full-time members handling building cases only. Then the tribunal was rolled into the Commercial and Consumer Tribunal, handling all manner of reviews despite getting no more full-time members; predictably, waiting times for matters to be cleared increased. The process was repeated with the creating of QCAT — a creation that generated a further increase in wait times.
Despite having the benefit of incredibly talented and hard-working leaders such as former Supreme Court Justice Alan Wilson, now President of the Land Court Fleur Kingham and current QCAT President Justice Daubney, QCAT struggles with its workload. So deaf is the government to these issues that Justice Daubney was moved to address this lack of resourcing in the QCAT annual report.
Unbelievably, the crisis in our magistrates courts is even worse. We have 96 full-time magistrates (Victoria, with a slightly larger population, has 140) who on average deal with 2164 matters per magistrate; by comparison, New South Wales magistrates deal with 1524. Despite the disparity in volume, both NSW and QLD have clearance rates of about 101%.
Now, Queenslanders are used to being better than our southern cousins, but for how much longer can our overworked Magistrates keep up this phenomenal pace? From Cooktown to Coolangatta, Mackay to Mt Isa, our magistrates are dealing out justice under unbearable workloads and significant stress. The system is at breaking point and simply cannot continue to rely on the perseverance of the bench and their committed admin staff; it is time to send in the cavalry.
The solicitors of Queensland count many amongst their number who would make exceptional magistrates, and the only answer to the current crisis is more backsides on the bench. That goes for QCAT as well, and it isn’t just the clearance rates of these institutions that is at stake — the public’s confidence in the justice system, so essential to the functioning of our society, is in the balance.
Queenslanders are far more likely to encounter the justice system via QCAT or our magistrates courts, whether they are chasing a tenant for rent, objecting to a condition on their plumbing licence or simply challenging a parking ticket, this is where they will end up. If their experience is that they had to wait 18 months for justice, what confidence will they have in our system? Why would they continue to respect laws, the enforcement of which moves at a glacial pace?
We need more magistrates and tribunal members; need, not want. Before the government renovates football stadiums and bids for the Olympics, they should spend some money to make it easier for victims of domestic violence to obtain protection orders and get guardians appointed for people who have lost capacity. These litigants are wandering slowly through an unfamiliar and frightening system and their suffering needs to be minimalised; only more resourcing can fix the situation.
I will be pressing the government relentlessly on this issue throughout my term, and I enjoin you to do so as well. Our role as solicitors, our calling, is to help those in need, and the best way to do that is to pressure our elected representatives into addressing this crisis. It might not be as sexy as thundering away in front of a jury like they do in the movies, but it does at least as much good.
Bill Potts, QLS President
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