Last year when the Queensland Government appointed retired District Court Judge Michael Shanahan to examine the Justices Act 1886, it knew the review was overdue.
Then Minister for Justice and Attorney-General, Shannon Fentiman said the Justices Act 1886 was “fundamental to our criminal justice system”.
At the time Minister Fentiman said it was crucial our justice system could “continue to operate effectively for Queenslanders now and into the future”.
“While the Justices Act has been amended and added to over the years, it has not been comprehensively reviewed, and many of its provisions carry the form and style of another era,” she said.
And with that statement, Mr Shanahan took on the review which involved widespread consultation including with the Queensland judiciary, the Chief Magistrate and courts’ staff, prosecution agencies, legal stakeholders, and the community.
Mr Shanahan, who presented at today’s Queensland Law Society Criminal Law Conference in Brisbane, said the Act was “older than ballpoint pens, zippers and vacuum cleaners. It was written before the Wright brothers took their first flight and before Australia became a nation”.
Before giving the sold-out conference an insight in the historic review, Mr Shanahan took time to talk to Proctor about why the review was so important.
He said Queensland’s Magistrates Courts were extremely busy, dealing with about 94 per cent of criminal matters in the state.
“Most people’s experience and understanding of the criminal justice system in Queensland is informed by contact and experience with a Magistrates Court. Criminal procedure in the Magistrates Courts is primarily governed by the Justices Act 1886 (Justices Act). The Justices Act sets out the laws about how to start a criminal proceeding, how a criminal matter progresses, and how it can be finalised in the Magistrates Courts. It is used every day, and underpins all summary criminal proceedings and committal proceedings in Queensland.
“For many, the Justices Act style is difficult to understand. Many of its provisions resemble its original form and much of the Justices Act is still written in an archaic way. Although there have been pockets of reform, the Justices Act has never been reviewed in full. In places, new provisions have been ‘tacked on’ or amendments have been made, contributing to its overall complexity. The Justices Act has long been seen as needing modernisation. All other Australian jurisdictions have undertaken this work.”
Mr Shanahan said the Criminal Procedure Review Magistrates Courts (the review) was a “valuable opportunity to examine and modernise criminal procedure laws in Queensland”.
“The intended outcome is the creation of a new framework for contemporary and effective criminal procedure laws applying in Queensland’s Magistrates Courts, to ultimately replace the Justices Act.
“During the review, a wide range of stakeholders said the complexity of the Justices Act does not match its fundamental critical role in regulating criminal procedure in the Magistrates Courts. Its overhaul and modernisation are long overdue and strongly supported by all stakeholders.”
He said one of the most common themes in consultation was that the “outdated style and format of the Justices Act” was a “factor impeding understanding of court procedures and can itself be a barrier to accessing justice”.
“The Justices Act compounds the difficulties court users already face in navigating a complex criminal justice system. This is especially so for self-represented defendants.
“The review presents a real opportunity to make modern criminal procedure laws that are clear, simple and easy to understand. This will have real benefits for court users and the system itself, including improving understanding and reducing delay.”
The review report was provided to the then Minister on 2 May 2023.
“The review report includes a set of recommendations that would collectively create simple, clear, chronological and accessible criminal procedure legislation appropriate for its key role in the criminal justice system,” Mr Shanahan said.
“It is accompanied by drafting instructions that can be used as the basis for the proposed new framework.”
Mr Shanahan hoped attendees took away three key messages from today’s session — the need for modernisation, improving understanding court proceedings and implementation.
Modernisation: “It is vital that this reform progresses, and the Justices Act is replaced with new, contemporary and effective criminal procedure laws for the Magistrates Courts. Criminal procedures must be clear, simple, straightforward and easy to understand. They must promote efficiency and consistency of practice, and must be fair for defendants, victims and witnesses.”
Improving understanding court proceedings: “It is vital that all court users (including defendants, victims and witnesses) understand Magistrates Courts criminal procedures. A lack of understanding is a barrier to accessing justice, especially for unrepresented defendants. It undermines the accessibility and fairness of the system.
“It is vital to reform criminal procedure laws in the Magistrates Courts to improve this understanding. However, there are also things we can do now. This could include using forms that are simpler to understand, providing fact sheets in simple language, and taking more time to explain things to court users.”
Implementation: “This review is not the end — really, it is just the beginning. The review report includes drafting instructions for a proposed new framework, which will need to be used to draft a Bill for passage through Parliament.
“There is then a significant body of work to implement this change, including new rules, regulations and forms. Significant change management and training is also required. This cannot be rushed. In a choice between getting it done and getting it right, we must get it right.”