Overview of Research Findings

The National Survey of Australian Magistrates addressed several areas reflecting issues raised in the consultations and identified through the literature review and analysis of other material:

• Current position as a magistrate;
• The work of a magistrate;
• Job satisfaction;
• Career background, including education and employment/work history;
• The relationship between work and other activities; and
• Demographic information

The survey was sent to 434 magistrates throughout Australia in November 2002.  Responses were received into January 2003; 210 surveys were returned, giving a national response rate of 48.0%.  It is important to note that we do not know the identify of those who returned the surveys and those who did not.  However, we do know that those who responded to the survey are generally representative of the population of Australian magistrates in terms of jurisdiction, gender, age, length of time as a magistrate and court location.  More about survey design, anonymity and confidentiality of responses can be found here.

The National Court Observation Study focussed on magistrates conducting the criminal list, in order to address aspects of everyday work magistrates themselves identified as a concern including the nature and number of decisions a magistrate must make, the time available to decide, the sources of information used and the interaction with other participants.

The study involved observing 27 different magistrates conducting a general criminal list in 30 different court sessions in 20 different locations, including all capital cities, five suburban and four regional locations between August 2004 and July 2005.  This represents more than six percent of all Australian magistrates.  The magistrates observed include men and women magistrates covering a range of ages and experience as magistrates.  As a group, the magistrates observed closely matched the distribution of the Australian magistracy as a whole in gender, age and years as a magistrate. 

Most observations covered an entire day, observing one magistrate in one court from beginning to end.  On some occasions one or more magistrates or courts might be observed in the course of a day.  The total number of matters observed across all sessions was 1,287. 

Who are the magistrates?

Australian magistrates are predominantly male, aged in their early 50s. They identify their ancestry as Australian or Anglo/Irish and their religion as Christian, equally divided between Catholic and Protestant (usually Anglican).  They mostly grew up in capital cities and are nearly evenly divided between those who attended state schools and those who attended Catholic or other independent private schools.  Nearly all their fathers participated in paid work, most frequently in white collar positions as professionals or managers.  Nearly half of their mothers did not participate in paid work at all, and over half of magistrates identify their mother’s main occupation as home duties.  Magistrates’ personal incomes are usually above $150,000 and, for most, their household incomes exceed $175,000.  Nearly all magistrates are married and most of their spouses are in paid work, slightly more full-time than part-time.  Nearly all magistrates have at least one child and nearly half have three or more children.

It is also important to consider some of the differences with the magistracy itself, which are obscured by the overall findings.  Higher percentages (over two-thirds) of younger magistrates, women and most recently appointed magistrates identify as Australian compared with bare majorities of their older, male or longer-serving colleagues, and higher proportions of women, younger magistrates, recently appointed magistrates and those located in capital cities identify with no specific religious affiliation.  Overall, lower proportions of women, younger magistrates and recently appointed magistrates identify as Catholics.  

Greater proportions of women, the youngest and the most recently-appointed magistrates attended state schools, contrasting most sharply with the longest-serving magistrates, with the lowest proportion attending a state school (just over one-third).  A much higher proportion of male magistrates report mothers not in the paid workforce at all and with home duties as their mother’s main occupation. 

In terms of current household characteristics: older, longer serving and/or male magistrates have considerably more children and older children than younger, female and/or recently appointed magistrates.  Nearly all magistrates are married or in a de facto relationship, though the proportion of women magistrates who are not partnered is higher than their male counterparts.  Of magistrates who have a spouse or partner, higher proportions of recently appointed and youngest magistrates and women have spouses in full-time, professional occupations, compared most strikingly with older, longer serving male magistrates who report a higher proportion of spouses/partners not currently in paid employment, engaged in home duties and volunteer work. 

Educational and career background

• Nearly all magistrates today are qualified for, and admitted to, legal practice and have substantial experience in legal practice.
• At the same time, there is a significant diversity of occupational backgrounds within the magistracy, including non-legal work and a variety of legal practice areas and positions.
• Occupational and educational backgrounds of magistrates differ, in some ways, according to age, gender and time as a magistrate.  Women, the youngest and the most recently appointed tend to form a distinct cohort.

Nearly one-third of magistrates have higher degrees or qualifications outside law or beyond the minimum legal education for qualification to practice.  Of this group, women, the most recently appointed and youngest magistrates are more likely to have a BA or postgraduate degree.

Magistrates have varied experiences of areas of practice and a majority held more than one position in their legal career.  One in seven report exclusively criminal experience and even fewer report exclusively civil experience.  Over seven in ten have experience in private practice and nearly six in ten have experience in government or public sector legal practice, with women, the youngest and most recently appointed more likely to report experience across both sectors. 

Over half of magistrates report a wide range of experience in non-legal occupations at various stages of their career with proportionately more women and recently appointed magistrates having non-legal work experience. 

The stereotype of magistrates as former clerks of the court without legal qualifications or a legal practice background is clearly not supported by the survey.  Only one fifth of respondents have a background as a clerk/registrar.  All but four of these have legal qualifications and over half have practised law, mainly in the public sector. 

This research clearly shows that there is no one career path into the magistracy, beyond qualification for legal practice.  There is no specific pattern of type(s) of legal practice, legal work or legal positions which dominate the magistracy.  Australian magistrates bring a very wide experience of legal practice to their work, as well as substantial experience in work outside the law across a range of occupations.

Factors shaping overall career and the decision to become a magistrate

• The decision to become a magistrate is an affirmative desire to undertake that role, pulled into the work, rather than pushed into it by dissatisfaction with previous occupations or positions.

• The intrinsic qualities of the work itself are of primary importance in the choice to become a magistrate and in overall career.  This includes features such as diversity of the work, intellectual challenge or the opportunity to use certain skills.

• For most respondents, factors reported as significant reflect a flexible approach to career development.  These include time for a change, desire for variety or a challenge, the availability of opportunities and, for some, a view that becoming a magistrate was a progression or career enhancement. 

• Altruistic social factors are also important, especially the ideas of the value to society of the work and the opportunity to be of service, less so a desire to improve the court system.  These qualities are particularly significant to younger, recently appointed and female magistrates.

Magistrates, regardless of gender, age and time of appointment, share the same basic views about the importance of the work itself and the lack of importance of outside factors in shaping their careers.

What is the everyday work of the magistrates and their courts?

These research findings give broad and valuable information about many aspects of magistrates’ everyday work which has not been independently and systematically described before.  As revealed by the survey, magistrates undertake a range of judicial and non-judicial tasks, in and out of court.  Important, frequent tasks and activities include sentencing, determining and formulating orders, preparing judgments, keeping up to date, community relations, court and staff management, meetings and presentations.  Undertaking these many tasks entails a wide range of qualities or skills, and frequently involves work outside regular working hours. Magistrates express considerable satisfaction with their overall work, but some dissatisfaction with control over the amount, which they agree has increased and is unrelenting.

Many of the qualities of everyday work which magistrates commented on in the survey were observed and described in concrete detail in the findings of the National Court Observation Study – the high volume of cases, the rapid pace at which they must be handled and the importance of formulating decisions, especially sentencing.  The interactive nature of the criminal list demands the qualities which magistrates identify as especially important: impartiality, communication, courtesy and being a good listener.  The emotional demands of the work are also vividly present in the criminal list.

The recognition of the importance of emotional work in the courtroom may appear to be at odds with the traditional conception of the judicial role which posits that emotions conflict with the rational nature of judicial reasoning. We suggest that sustaining the law’s impartiality relies on emotional labour. Complying with such judicial ethics as impartiality, neutrality, and fairness often depends on the successful performance of emotional labour in the courtroom. Emotional management is a critical component of enabling court users to experience the legal process as fair and legitimate, essential for the integrity (actual and perceived) of the justice system. These developments potentially raise deep questions about the proper role of a judicial officer.

What is the relationship between magistrates courts and social services?

Magistrates courts and social services have a complex relationship.  In our consultations, several individual magistrates articulated their concern to make a difference to the operation of the courts and to the everyday citizens who use them.  In the National Survey of Australian Magistrates, three-fifths of the magistrates identify value to society as an important (including very important) factor in their decision to become a magistrate and two-thirds express satisfaction with the importance to society of their work.

Magistrates confront the human consequences of broad social inequalities or changes in socio-economic conditions and government policies, such as the flow on from law and order, zero tolerance, tough policing and similar campaigns.  Though any one decision might not itself make a direct structural social change, the cumulative and incremental effect of magistrates’ decisions can initiate social change at a micro level or at the level of the individuals who are having their matters dealt with in these courts.

Often the ways in which magistrates can make a difference involves some relationship with social services. The conventional aspect of magistrates’ interaction with social services is in relation to sentencing and bail decisions in the criminal list.  A recent example of structural and procedural changes in the lower (and some higher) courts is the development of problem-oriented courts, such as drug courts or mental health courts.  These are examples of ways courts have responded to larger social and economic changes.

Another way to look at the interaction between social services and the magistrates courts is to examine who is regularly present in the courthouse or the courtroom. The National Court Observation Study noted the presence of a range of social service organisations with allocated rooms in the courthouse, though not necessarily always staffed. Of the 20 different courthouses observed, nearly all had some visible presence of social welfare or assistance organisations.

Conclusion

The findings from the Magistrates Research Project comprise a unique examination of a court and its judicial officers. We are unaware of any court, anywhere in the world, which has participated in and supported a comprehensive, independent research project of this nature.

The research findings provide concrete and detailed information on the magistrates as professional occupational group, as part of Australian society and as judicial officers.  Their everyday work has been examined in terms of the nature of the work, the skills needed to carry it out, their attitudes towards their work and the challenges and stresses it presents. The particular opportunities and demands of magistrates’ work in the criminal list have been examined in depth.  The distinctive role of social services has also been considered.

Commentators who consider law and social change only from the perspective of the higher courts often emphasise the apparent distance of law from everyday life and concerns.  However, the many people before the magistrates courts do experience the law in action, not just the law on the books.  Here there are many opportunities for positive impact, as well as limits on the ability of individual magistrates and courts as an institution to effect change.