It is probable that no other court of summary jurisdiction in the British Commonwealth has anything like the extensive civil and criminal jurisdiction of the Magistrates' Court in New Zealand. Nor have Magistrates of other countries the many special jurisdictions and extra-judicial functions conferred on New Zealand Magistrates by statutory enactment. In fact, it is not too much to say that the Magistrates' Court in New Zealand during the present century has acquired a degree of public confidence which has raised it to a level not far below that of the superior Court.
The Magistrates' Court has evolved from the Courts of summary jurisdiction of the nineteenth century, which were presided over by Resident Magistrates and Justices of the Peace. The Resident Magistrates on the pattern of the sixties, seventies, and eighties have disappeared, and the judicial functions of the Justices of the Peace have suffered practically the same fate in New Zealand, although the Justices of the Peace Act still has its place on the statute book. Perhaps the most interesting aspect of the rise of the Magistrates' Court Bench as a powerful influence in the community is the lowly, and sometimes suspect, inauguration from which it sprang. A legal profession and a public accustomed to the contemporary standards and dignity of the Magistrates' Courts of the Dominion, and also to the milder methods of current criticism of matters judicial, could hardly fail to be intrigued, if not actually appalled, by some of the practices and procedures in the sphere of justice when summary jurisdiction was almost entirely in the hands of Resident Magistrates. Recourse to the lower Courts was commonly regarded as a hazardous business, and there must have been many who could appreciate vividly what Voltaire meant when he said: “I was never ruined but twice; once when I lost a lawsuit and once when I won one”.
Granted that a fierce light of criticism beat upon all who held judicial office, there were apparently some strange Magistrates in the days before laymen were excluded from the Bench. It was a heartless, critical, unforgiving age. The minutest of errors by these instruments of justice seems to have been viewed through a magnifying glass of what Sam Weller used to call “hextra power”. And no quarter was given. “Blundering ignorance, bad taste, imbecility, partiality, and peculation” were only some of the choice flowers of speech that were scattered benigno cornu by the newspapers. The extent to which the law and the litigant suffered represents one of the less admirable features of the law in the early days of New Zealand, and the reality of the situation is emphasised by the attacks made on the Courts at a time when the Bench displayed an insatiable predilection for the committal of a wide variety of editors and critics for contempt. That these assaults had a solid basis of truth must be inferred from the fact that the Legislature in the seventies was put to a succession of devices, short of a clean sweep of the magistracy, in an effort to correct the position. The whole trouble was that, even in an era of colonial patronage and political privilege, there was an excess of exceptionable elevations of untried appointees unblessed with legal knowledge or experience, unproved of character, and in some cases lacking in anything more than the most elementary education.
The system in operation at the time entirely ignored a principle fundamental to English law – that legal appointments belonged, as of right, to the legal profession, and that the appointment of laymen to any legal office whatever was a violation of the established rights of the profession. The contemporary public, litigious or otherwise, no less than the whole body of legal practitioners, may indeed congratulate themselves on the liberal and well-reasoned character of the amendments that have been effected by successive enactments of the present century. Of all the changes wrought in the constitution and procedure of Magistrates' Courts, none can have exerted a stronger influence than the exclusion of the layman from the Bench, except, of course, in the case of the modern Justice of the Peace. But statutory insistence on professional qualifications in all Magistrates was a long time arriving. In fact, it was less than half a century ago, within the memory of many present-day practitioners, that the Legislature accepted the principle that the law should be left to the lawyers in the same way that plumbing was left to the plumber.
Resident Magistrates' Courts were first set up in 1846. Their circumscribed jurisdiction was amended and revised in varying degrees from time to time until the enactment of the Resident Magistrates Act of 1867, an amending and consolidating measure which repealed all previous ordinances and statutes relating to such tribunals. The framework of the 1867 Act, even though it was repealed in 1893, is still discernible in contemporary legislation represented by the Magistrates' Courts Act of 1947.
All the early statutes were distinguished from the current law on the subject by the inclusion of three significant words “not necessarily qualified”. In the extreme, the Resident Magistrate required no law, and no official attempt was made to groom him for his office, or encourage him to fit himself for it. Section 4 of the Resident Magistrates Act of 1867 opened the field to “all fit persons, being Justices of the Peace who shall be, and be called, Resident Magistrates”. Twenty-six years later, section 13 of the Magistrates' Courts Act of 1893 merely provided that appointees should be “fit and proper persons” and that they should be called Stipendiary Magistrates. Section 15 of the same Act, however, made a distinction in that no person could be appointed to exercise the extended jurisdiction provided for under the Act who was not a barrister or solicitor, or who had not “for a period of five years at the least been continuously and in a competent manner exercising the extended jurisdiction of the Courts”.
Still there was no exclusion of those without legal training, but the Act of 1893 for the first time divided the Courts' jurisdiction into “ordinary”, “extended”, and “special”; it could be said that the writing was definitely on the wall as far as the lay Magistrate was concerned. The Magistrates' Courts Act of 1908 finally put the seal on the matter. From henceforth all Stipendiary Magistrates were required to be qualified barristers or solicitors.
Thus it can be said that the Magistrates' Court Bench as it functions today is not much more than 50 years old. That it has attained the position in the community which the public now accords it is a tribute to the ability, integrity, and diligence of those who have served, and continue to serve, on it. Today the roll of Magistrates for the whole of New Zealand varies from 35 to 40, whereas in those far-off days, now fortunately gone, the Resident Magistrates never numbered fewer than 60, and could sometimes muster a tally of 70 and more. Considering the growth of jurisdiction, the Magistrates' Courts today deserve well of the community they serve.
by Ronald Jones, Journalist and Script Writer, New Zealand Broadcasting Corporation, Wellington.