Justices of the Peace Regulations 2021

The regulations introduce and define several distinct categories of office holder. A “justice” is a justice of the peace appointed under section 4 of the Act. A “special justice” is a justice who has been recommended by the Attorney-General and appointed under section 7 of the Act to exercise additional powers, typically in the Magistrates Court or Youth Court. The regulations add a further gradation: a “retired justice” is a former justice who has completed at least 20 years of service and is entitled to use the title “JP (Retired)” under section 16 of the Act. The prescribed period of 20 years in regulation 7 matches the Act’s threshold. Importantly, a retired justice is not a current justice but remains subject to the Code of Conduct for Retired Justices, which consists solely of a prohibition on using the retired title for commercial gain.

The “Code of Conduct for Justices of the Peace and Special Justices” in Schedule 1 is not a single monolithic code but contains two parts with different scopes. Part 1 applies to all justices, including special justices, and covers nine topics: acting within conditions of appointment; prohibition on soliciting or accepting fees, gifts, rewards; conflict of interest and improper influence; rules for administering oaths, taking affidavits, witnessing instruments; confidentiality; prohibition on providing legal advice; restrictions on use of office or title; general conduct duties; and mandatory notification of specified events to the Attorney-General. Part 2 applies only to special justices and adds four clauses: interpretation (defining “supervising judicial officer”); court duties; standards of conduct and dress; and mandatory notification to the Chief Magistrate or Judge of the Youth Court of the same events already listed in clause 9.

The concept of “proper cause” for disciplinary action is central. Regulation 6 provides that breach of Part 1 of the Schedule 1 Code (excluding clause 9(2) and (3)) constitutes proper cause under section 11(1)(c) of the Act. This means that a justice who fails to comply with the prohibition on fees, the conflict rules, the legal advice ban, the confidentiality duty, the general conduct obligations, or the notification duty under clause 9(1) is exposed to disciplinary proceedings. However, breaches of clause 9(2) (failure to notify change of name, address, phone or occupation within 28 days) and clause 9(3) (failure to notify absence from the State or inability to perform duties for three months) are expressly excluded. Those notification failures are therefore not proper cause, even though clause 9 itself imposes the duty. This creates a compliance anomaly: the regulation imposes a strict reporting obligation but makes only some violations enforceable through discipline.

The regulations directly affect four classes of person. First, applicants for appointment as a justice. Regulation 4 sets out prescriptive eligibility criteria: proficiency in English, not bankrupt, not disqualified from managing companies, must provide at least two character references, and must live or work in an area or community with a demonstrated need for a justice. The examples under regulation 4(1)(f) show that the need criterion is applied flexibly: it may be desirable to appoint more justices per head in widely scattered rural communities, or to match ethnic or cultural groups, or to place justices in high-demand locations such as local council offices or MP electorate offices. Applicants for reappointment are exempt from the reference and need requirements (regulation 4(2)). This exemption reduces the recurring compliance cost for existing justices who wish to renew.

Second, current justices (ordinary JPs). They are bound by Part 1 of the Schedule 1 Code. The code imposes ongoing duties that affect their personal and professional lives. For instance, a JP who is also a small business owner must take care not to use the JP title for business promotion. A JP who is charged with a criminal offence or issued an intervention order must notify the Attorney-General within 14 days. These obligations apply regardless of whether the event is minor or ultimately results in no conviction.

Third, special justices. They face additional duties under Part 2 of the code. They must follow directions of the supervising judicial officer, attend court at notified times (subject to providing reasonable notice of inability), and maintain a judicial officer’s standard of conduct and dress while on duty or in court precincts. They must also separately notify the Chief Magistrate or Youth Court Judge of the same triggering events they are already required to report to the Attorney-General (clause 12). This dual reporting requirement doubles the compliance burden for these individuals.

Fourth, retired justices. Schedule 2 imposes a single prohibition: they must not use “JP (Retired)” or any similar title to advance business or commercial interests. This restricts the ability of former long-serving justices to monetise the prestige associated with the office. The regulation cannot prevent a retired justice from informally mentioning past service, but any commercial use of the title is prohibited and, under section 16 of the Act, attracts a fine of $2,500.

The regulations also indirectly affect the Attorney-General, who receives notifications and exercises discretion to waive certain eligibility criteria for special justices (regulation 5(2) and (3)). The Chief Magistrate, the Judge of the Youth Court, and Magistrates designated as supervising regional managers are recipients of notifications and issuers of directions. Employers of justices may be affected where the justice performs JP duties during work hours, though the regulations do not create any employer obligation.

The key duties imposed by the regulations fall into three categories: pre-appointment obligations, ongoing conduct obligations, and reporting obligations.

Pre-appointment duties sit with the applicant. They must demonstrate English proficiency sufficient to identify documents, read instructions, and seek advice (regulation 4(1)(b)). They must not be bankrupt or disqualified from company management. They must provide two character references. They must show that they live or work in a location where a justice is needed. For special justice applicants, additional duties apply: they must be under 65 (subject to waiver), speak English fluently enough for a courtroom, have no convictions or outstanding charges (subject to waiver), and have been recommended by the Chief Magistrate or Youth Court Judge (regulation 5). The right to apply for reappointment with reduced requirements is a significant procedural benefit.

Ongoing conduct duties are enumerated in the codes. The most economically significant is the prohibition on soliciting or accepting any fee, gift, reward, gratuity, benefit or favour in connection with the office of justice (clause 2). This is absolute: a JP cannot accept payment for witnessing documents, even if the person is willing to pay. This rule removes any price mechanism from the supply of JP services. It also means that a JP who operates a business must not imply that paying for the business service will also include free witnessing; any such arrangement risks being a disguised reward. The conflict of interest rule (clause 3) requires a JP to refuse to exercise powers in any matter where they have a direct or indirect personal, family, financial or business interest. This can create friction in small communities where the JP may know all parties.

The prohibition on providing legal advice (clause 6) is a strict liability bar. A JP cannot explain legal consequences, even if they are legally qualified in another capacity. This limits the value of the JP service to purely mechanical witnessing and attestation. The confidentiality duty (clause 5) prohibits divulging private, confidential or commercially sensitive information obtained in carrying out official duties, except as authorised by law or with consent. This is a continuing duty that survives the act of witnessing.

Reporting duties under clause 9 are extensive and time-sensitive. A justice must notify the Attorney-General within 14 days of being charged with, convicted of, or acquitted of a non-expiable offence; of certain intervention orders, firearms prohibition orders, control orders; of diagnosis with a mental illness raising concerns of harm; of findings of dishonesty by any court, tribunal, inquiry or regulatory body; of bankruptcy; or of disqualification from managing corporations. Additional reporting to the Chief Magistrate or Youth Court Judge applies to special justices (clause 12). The 14-day window is short and carries no grace; missing it is a breach of the code, though (oddly) only breach of clause 9(1) is proper cause for discipline, not breaches of the change-of-details or absence reporting duties.

Rights are sparse. A justice has the right to be exempt from the reference and need requirements on reappointment. A person has the right to apply for waiver of the age limit for special justices or for disregard of a criminal conviction (regulation 5(2),(3)). A special justice has the right to be excused from court attendance if reasonable notice of inability is given (clause 11(3)). A retired justice has the right to use “JP (Retired)” after 20 years’ service, but that right is constrained by the prohibition on commercial use.

The regulations do not create penalties directly; they operate through the disciplinary framework in the Act. Regulation 6 specifies that breach of Part 1 of the Schedule 1 Code (except clause 9(2) and (3)) constitutes proper cause for taking disciplinary action under section 11(1)(c) of the Act. The Act itself provides for disciplinary action that can include suspension, admonishment, or removal from office. The regulations thus determine what behaviour can trigger these powers.

The practical enforcement gradient is worth noting. A breach of clause 2 (soliciting or accepting fees) or clause 3 (conflict of interest) is clearly proper cause and likely to result in serious consequences. A breach of clause 9(1) (failure to report a charge or conviction within 14 days) is also proper cause, meaning a justice who forgets to report a minor traffic charge that is not expiable could face disciplinary proceedings. On the other hand, a justice who fails to notify a change of address under clause 9(2) or an absence under clause 9(3) cannot be disciplined solely for that failure, because regulation 6 expressly excludes those subclauses from the definition of proper cause. This is a deliberate carve-out, presumably to avoid over-penalising administrative oversights, but it creates an asymmetrical enforcement regime: some reporting duties are mandatory yet effectively unenforceable through discipline.

For retired justices, the penalty does not arise from the regulations but from the Act. Section 16(4) of the Act makes it an offence for a former justice who is not entitled to use the retired title, or who uses it in a way not permitted, to do so, punishable by a fine of $2,500. The regulations’ Schedule 2 code reinforces this by prohibiting commercial use of the retired title, but the offence is statutory. The fine is modest and may not deter commercial exploitation in high-value contexts, though the reputational risk to a retired JP would likely be the more significant deterrent.

Enforcement of the codes for current justices ultimately rests with the Attorney-General, who receives notifications and can initiate disciplinary proceedings. For special justices, the supervising judicial officer also plays a role, particularly regarding court duties and conduct in court precincts (clause 11(5)). A special justice who fails to attend court without reasonable notice may be subject to direction and potentially to disciplinary action through the Act. The codes do not provide for any internal appeal mechanism, but any disciplinary decision would be subject to judicial review.

The regulations are subordinate to the Justices of the Peace Act 2005 and are made under specific provisions of that Act. The Act sets the outer boundaries: the regulations cannot impose requirements inconsistent with the Act. For instance, the Act already prohibits a justice from charging fees; the regulations’ clause 2 reinforces that prohibition. The Act’s section 16(4) offence for misuse of title by retired justices is supplemented by Schedule 2’s code, but the code itself is not an offence-creating provision; it is a conduct standard.

The regulations cross-reference multiple South Australian and Commonwealth statutes. The definition of “offence” in regulation 5(4) excludes expiable offences (essentially minor traffic and regulatory infractions payable by fine without court appearance). This is important for the appointment eligibility of special justices and for notification duties. The references to the Intervention Orders (Prevention of Abuse) Act 2009, the Firearms Act 2015, the Serious and Organised Crime (Control) Act 2008, and the Child Sex Offenders Registration Act 2006 create a framework where a justice’s involvement with certain protective or control orders triggers mandatory reporting. The reference to Part 5.3 of the Commonwealth Criminal Code (terrorism control orders) is also notable, though such orders are rare in practice.

The regulations also interact with the Corporations Act 2001 (Cth) by disqualifying persons disqualified from managing corporations from appointment as a justice (regulation 4(1)(d)), and by requiring notification of such disqualification (clause 9(1)(j)). This aligns the JP appointment criteria with federal corporate law disqualifications, creating a cross-jurisdictional integrity screen.

The Local Government Act 1999 definition of “member of a council” is incorporated for the exception in clause 7(2), allowing councillors to use the JP title on personal websites or social media without it counting as advancing business or commercial interests. The exception is narrow: it does not extend to using the title on business stationery or in advertising.

The example in clause 4(1) of Schedule 1 references the Second-hand Vehicle Dealers Regulations 2010, showing that a JP witnessing a waiver of rights under that regulation must do so in accordance with directions under that Act. This illustrates a broader interaction: when performing a witnessing function under any Act, a JP must follow the specific directions of that Act. The regulations do not create a standalone witnessing code but rather anchor to each enacting statute.

The Justices of the Peace Regulations 2021 were made on 18 August 2021 and published in the South Australian Government Gazette on that date. They commenced on 1 September 2021, as provided by regulation 2. The only amendment they made to prior law was the revocation of the Justices of the Peace Regulations 2006, effected by Schedule 3. The 2006 regulations are the only predecessor instrument, having been in force for 15 years.

The instrument itself has not been amended at the time of this analysis. The legislative history note at the end of the regulations refers readers to the Index of South Australian Statutes or www.legislation.sa.gov.au for any subsequent amendments. Because the regulations are relatively recent, there is no amendment history to report beyond the revocation of the 2006 version. Whether the 2021 regulations represent a significant change from the 2006 version depends on the content of the earlier regulations, which are not reproduced here. However, the detailed notification obligations and the express exclusion of clause 9(2) and (3) from disciplinary action appear to be new features absent from the earlier regime. The 2021 regulations also introduce the concept of a “supervising judicial officer” for special justices, which was likely not present in the 2006 instrument.

The regulations as an instrument do not reference any case law. The Justices of the Peace Act 2005 has been the subject of occasional judicial consideration, but no reported decisions arising directly from the 2021 regulations were identified in the source. The codes of conduct have not been tested in litigation. Any challenge to disciplinary action taken under section 11 of the Act on the basis of a breach of the code would be brought in the South Australian Supreme Court on judicial review grounds. The most likely points of future litigation include the scope of “improper influence” in clause 3(2), the meaning of “business or commercial interests” for the purpose of the title restrictions (clause 7 and Schedule 2), and the definition of “expiable offence” (since regulation 5(4) excludes expiable offences from the definition of “offence” for special justice eligibility, and clause 9 similarly excludes them from reporting duties). The boundaries of the mental illness reporting trigger (clause 9(1)(g)) are also vague and could be disputed if a justice challenges a requirement to report a diagnosis.

There is no litigation history against the instrument itself because it is not self-executing; it is the conduct of justices that would be litigated, not the regulations per se. However, the instrument’s structure gives rise to potential procedural fairness issues, particularly the 14-day reporting window for events such as a charge that later proves unfounded. A justice who reports incorrectly or late may face disciplinary action before the charge is resolved, raising questions about pre-judgment. No case has yet tested whether the regulations can validly require reporting of a charge (as opposed to a conviction) without violating the presumption of innocence, but this is an open issue.

Several features of the regulations can trap unwary justices and applicants.

The most significant is the split enforcement of notification duties under clause 9. Clause 9(1) (14-day notification of charges, convictions, orders, bankruptcy, disqualification) is proper cause for discipline if breached. Clause 9(2) (28-day notification of change of name, address, phone, occupation) and clause 9(3) (notice of absence or incapacity for three months) are also duties, but breach of them is not proper cause under regulation 6. A justice who fails to notify a change of address does not face disciplinary action for that failure alone, but a justice who fails to notify a criminal charge within 14 days does. The distinction is not obvious from a plain reading of clause 9, and a justice relying solely on the code text might think all subclauses carry equal weight. They do not.

The prohibition on providing legal advice (clause 6) is absolute and does not contain an exception for justices who are also lawyers. A solicitor who is a JP must not give legal advice in their JP capacity. In practice, this means a lawyer-JP must be careful to delineate when they are acting as a JP (mechanical witnessing) and when they are acting as a lawyer (giving advice). A lawyer who witnesses a document for a client and then offers an opinion on its legal effect could be in breach. The code does not define “legal advice”, leaving room for debate.

The conflict of interest rule (clause 3(1)) is broad: “direct or indirect personal, family, financial or business interest”. A JP cannot witness a document for a relative, for a business partner, or for a company in which they hold shares. Even a minor indirect interest, such as being a member of a club that benefits from the document, could be caught. In small communities, this can make it extremely difficult to find a JP who is unrelated to the parties.

The requirement to provide two character references (regulation 4(1)(e)) applies only to initial appointment, not reappointment. An existing JP who has served a term must reapply but does not need to provide fresh references. However, the regulations do not specify what happens if a justice moves to a different area; the “need” requirement in regulation 4(1)(f) may be reassessed on reappointment, even though the reference exemption applies.

Special justices face a dual reporting burden under clauses 9 and 12. They must notify the Attorney-General under clause 9 and also notify the Chief Magistrate or Youth Court Judge under clause 12 of the same events. This duplication increases compliance costs and creates two separate potential breach points. The note under clause 12 acknowledges the dual requirement.

Retired justices must be careful not to use “JP (Retired)” in any commercial context. Even a modest advertising placement or a business card can be an offence. The prohibition applies to “any other title or description that implies that the person is a retired justice”. Using “Former JP” could be caught. The fine is $2,500, which is not trivial for a small business. A retired justice who wishes to use the title on social media for non-commercial purposes is not restricted, but the line between personal and commercial use can be blurry.

The regulation’s definition of “offence” in regulation 5(4) excludes expiable offences. This means a special justice applicant can have expiable traffic tickets and still be eligible (subject to the Attorney-General’s waiver). But clause 9(1) also excludes expiable offences from the notification duty. A justice charged with a speeding fine that is expiable does not need to report it. However, if the charge is not expiable (e.g. a drink driving charge that must go to court), it must be reported within 14 days. A justice who mistakenly believes a charge is expiable when it is not could breach clause 9(1).

Compliance with the regulations requires a structured approach by both applicants and serving justices.

For prospective justices, the first step is to verify eligibility. Ensure you are not bankrupt or disqualified from managing corporations. Confirm you have sufficient English proficiency to perform the duties, meaning you can identify document types, read instructions, and seek advice. Prepare at least two referees who can attest to your good character, reputation and community standing. Identify the need for a justice in your area or workplace; if you are unsure, contact the Attorney-General’s Department to discuss. If applying for reappointment, note that you are exempt from the reference and need requirements, but you should still be prepared to demonstrate continued suitability.

For appointed justices, the most important step is to internalise the Code of Conduct. Print Schedule 1 and keep it accessible. Never accept any payment, gift or reward for JP services; politely decline and explain the prohibition. Before witnessing any document, ask yourself whether you have any direct or indirect personal, family, financial or business interest in the matter. If you do, refuse. Do not provide legal advice; if a person asks for an explanation of the document, direct them to a lawyer or community legal centre. Maintain strict confidentiality about documents you witness; do not discuss them with third parties. Do not use your JP title on business cards, letterhead, or in advertising. The exception for MPs and councillors using the title on personal websites or social media does not extend to business promotion.

The notification obligations under clause 9 require a system. Keep a diary of the 14-day reporting requirement for any of the listed events: being charged with a non-expiable offence, being issued with intervention or firearms orders, being subject to control orders, being diagnosed with a mental illness raising harm concerns, being found to have acted dishonestly by any body, becoming bankrupt, or being disqualified from company management. Upon occurrence of any such event, immediately prepare written notice to the Attorney-General. Use a template to ensure you include all details required. For changes of name, address, phone or occupation, you have 28 days; for absences or inability to perform duties for three months, you must notify “as soon as practicable”. While failure to meet these latter notifications is not proper cause for discipline, it is still a breach of the code and could be noted in any broader investigation.

Special justices have additional steps. Comply with directions from the supervising judicial officer. Attend court as notified; if you cannot, give reasonable notice. Maintain the conduct and dress standard expected of a judicial officer whenever performing duties or in court precincts. Separately notify the relevant Chief Magistrate or Youth Court Judge of the same triggering events you report to the Attorney-General. Keep a copy of both notifications.

Retired justices must not use “JP (Retired)” for any business or commercial purpose. If you are self-employed, remove the title from all business materials. If you choose to use the title on a personal social media account, ensure the account does not promote any business.

All justices should seek independent legal advice if uncertain about a specific situation, as the regulations are enforced through the Act’s disciplinary process and the consequences of a breach can include removal from office.