Can Non-Lawyers Become Magistrates?

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For many who are interested in the criminal justice system, becoming a magistrate or judge is considered to be an honour.

Magistrates oversee cases in our Local Courts, and are responsible for finalising the vast majority of cases in NSW.

Some of us, however, might prefer to skip the years of working as a lawyer before being appointed to the bench.

So what does it really take to be a magistrate, and can you become one without being a lawyer first?

Do I Have To Be A Lawyer First?

Those wishing to propel themselves straight to the bench may be sorely disappointed to know that to become a magistrate, you will need to have been an Australian lawyer for at least five years.

Alternatively, you can be appointed if you’ve worked as a judicial officer elsewhere in NSW, the Commonwealth or another state or territory – but these positions also generally require you to have previous experience as a lawyer.

A judicial officer refers to a judge, magistrate or some other person who, whether alone or with others, constitutes a court – but it does not include lay persons such as court officers.

These requirements are set out in section 13 of the Local Court Act 2007

What are The Criteria For Becoming a Magistrate?

Provided you’ve practised as a lawyer for five years, or worked as a judicial officer, the next step is to ensure that you meet the selection criteria, which include:

  • Proficiency in the law an its underlying principles;
  • A high level of professional expertise and ability in the area(s) of professional specialisation;
  • Applied experience (through the practice of law or other branches of legal practice)
  • Intellectual and analytical ability

These criteria make it clear that anyone wishing to become a magistrate will need have a considerable amount of legal expertise.

Candidates will also need to possess the personal qualities of integrity, independence and impartiality, good character, common sense and good judgement, courtesy, patience and social awareness.

A Brief History of the Magistracy

It wasn’t always the case that you needed to be a lawyer before becoming a magistrate.

In fact, the first Australian magistrates were simply justices of the peace (‘JPs’), who were generally wealthy civil or military officers appointed by the Governor.

JPs were entrusted with determining minor criminal cases, and disciplinary matters involving convicts. They also had jurisdiction over minor civil cases and performed a range of administrative functions in the early days of the NSW colony.

Before long, it became necessary to expand the powers of JPs, and in 1830 they were appointed to oversee courts of Quarter Sessions, which were courts that heard more serious cases.

Not long after this, a new law was passed enabling police to be appointed as magistrates by the Governor. These magistrates were known as ‘police magistrates,’ and were responsible for carrying out policing duties such as arresting and detaining people suspected of committing crimes, as well as exercising magistrate’s duties. So it could be said that police magistrates were ‘judge, jury and executioner’.

The very first magistrates did not have to pass exams, and many were simply friends or relatives of the Governor or ministers.

But magistrates were officially recognised as ‘public servants’ when the Public Service Board was established to regulate the appointment of judicial officers. The Board required all aspiring magistrates to pass a series of exams before being appointed, which saw an increasing number of lawyers seeking appointment.

By the 1950s, judicial candidates were expected to have professional legal qualifications, and in 1982 the appointment of magistrates was vested in the Attorney-General, rather than the Public Service Board.

Becoming a Judge Overseas

Although it’s a long road to become a magistrate or judge in Australia, the process is a bit easier in several other countries.

Many European nations which utilise the inquisitorial system, for instance, offer the opportunity to become a judge soon after completing a law degree.

The inquisitorial system allows judges to play a more active role in legal proceedings. Unlike our ‘adversarial system’, judges in inquisitorial systems assist in gathering evidence and interrogating witnesses, in addition to directing the court proceedings.

In Germany, prospective judges must first complete a law degree and the pass a qualifying exam. They then complete a two year apprenticeship which allows them to develop legal skills, before passing another examination. At this point, they are able to either commence practising law as lawyers or can choose to immediately become members of the judiciary. After completing a five year probationary period, those who choose a career at the bench are appointed as judges for life.

Some believe that this approach allows judges to rapidly develop the skills necessary to become a good judicial officer, but others contend that it interferes with judicial independence and fosters a culture of inexperienced judicial officers with insufficient legal knowledge and questionable competence.

Regardless of whether you are interested in pursuing a career on the bench in Australia or overseas, the process is a lengthy one which requires many years of dedication.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

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