Litigants sometimes suspect that a magistrate has been “told” what to do, by a senior magistrate, a provincial administrator or a police commander. The law is clear that no such direction is lawful, and it is worth knowing where that protection comes from and what it does not cover.
The rule in the Act
Subject to the powers and authority of the National Court, a Magistrate is not subject to any direction in, or in relation to, the hearing and determination of a case before him.
The only qualification is the National Court, which supervises the District Court through appeals under Part XI, through judicial review, and through the section 13 procedure by which a magistrate who refuses to perform a duty can be ordered to do so. A National Court order binds the magistrate, and section 249 protects a magistrate who obeys one. Nothing else does.
The constitutional guarantee
Except to the extent that this Constitution specifically provides otherwise, neither the Minister responsible for the National Justice Administration nor any other person or authority (other than the Parliament through legislation) outside the National Judicial System has any power to give directions to any court, or to a member of any court, within that System in respect of the exercise of judicial powers or functions.
Section 155(1)(c) places the District Court inside the National Judicial System, so section 157 applies to every magistrate. Section 172(3) adds security of tenure: a full-time magistrate may be removed only for incapacity or misbehaviour, and only in accordance with an Act. Section 37(3) gives every person charged with an offence the right to a fair hearing by an independent and impartial court, and section 37(11) gives the same guarantee for the determination of civil rights.
What the Chief Magistrate can direct
The Chief Magistrate’s powers are administrative. Under section 2 of the Magisterial Service Act the Chief Magistrate is responsible for the posting of magistrates, the allocation of duties between magistrates at the same place, and discipline under the Commission’s determinations. Section 21A of the District Courts Act allows the Chief Magistrate, with the Commission’s approval, to make rules of civil practice and procedure. None of that extends to the outcome of a case.
Section 3(3)(b) provides that a Reserve Magistrate is subject to direction by the Chief Magistrate in regard to practice and procedure relating to the exercise of the office. Even that is confined to practice and procedure. The decision in the case remains the Reserve Magistrate’s own.
Police and prosecutors
The same is true of the Public Solicitor, the State Solicitor and any lawyer appearing. Counsel may urge a result and cite authority for it; that is advocacy, and it is heard in open court where the other side can answer. A private approach to the magistrate about a pending case, by anyone, is improper and should be disclosed to the parties.
The relationship with the police runs the other way. Section 274 requires all members of the Police Force to obey the warrants, orders and directions of Magistrates, on pain of the penalties for neglect of duty. A police prosecutor is a party before the Court, with the right to withdraw an information under section 61A, but no standing to instruct the bench. Where the Public Prosecutor has a statutory role, for example the election under section 420 of the Criminal Code or the consent to withdraw a section 420 charge under section 61A(2), that is a power over the prosecution, not over the magistrate’s decision.
What to do if a direction was given
| Situation | Route |
|---|---|
| The decision is wrong on its merits | Appeal to the National Court under s 219 within one month: appeals |
| The magistrate was not impartial, or the process was unfair | Judicial review under Order 16 of the National Court Rules for breach of natural justice, as in Maladina v Poloh (2004) N2568 |
| The magistrate refuses to perform a duty | Application to the National Court under s 13 for an order to show cause |
| Misconduct by the magistrate | Complaint to the Chief Magistrate or the Judicial and Legal Services Commission under the Magisterial Service Act |
An allegation that a magistrate was directed or biased is serious and must be supported by evidence. The Magistrates’ Manual reminds magistrates that a disqualifying interest or a reasonable apprehension of bias requires them to step aside, and section 22C of the Act gives one specific instance: a magistrate who has tried to mediate a civil dispute and failed shall not hear the case except at the request of the parties. Beyond that, the test is the ordinary one of whether a fair-minded observer would apprehend that the magistrate might not bring an impartial mind to the case.
The other side of independence
Independence comes with protection. Part XII of the Act restricts actions against magistrates for things done in the execution of office, and section 256 requires a plaintiff to plead and prove that the act was done maliciously and without reasonable and probable cause. That is the subject of can I sue a magistrate.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.