Editors --- "Managing Justice: the Government Responds" [2003] ALRCRefJl 28; (2003) 83 Australian Law Reform Commission Reform Journal 62

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Reform Issue 83 Spring 2003

This article appeared on pages 62 – 63 of the original journal.

Managing Justice: The Government responds

The Australian Law Reform Commission’s report Managing Justice: A review of the federal civil justice system (ALRC 89) will become the centrepiece of federal Government initiatives to develop a national civil justice strategy.¹ In June 2003, the Government released a point-by-point response to the report, describing it as one of the ‘most significant’ ever produced by the ALRC.

The ALRC’s review of the federal civil justice system was initiated in November 1995 after concerns that Australian legal proceedings were becoming excessively adversarial and that this was having a damaging effect on the delivery of justice. The ALRC was specifically directed by the terms of reference to consider ‘the need for a simpler, cheaper and more accessible legal system’.

The inquiry focussed on practice, procedure and case management in federal civil courts and tribunals, such as the Federal Court of Australia, the Family Court of Australia and the Administrative Appeals Tribunal (AAT), as well as on issues such as costs, delay, legal ethics, legal and judicial education, judicial accountability, alternative dispute resolution, legal aid and expert witnesses.

As part of its research for the inquiry, the ALRC undertook—and also commissioned—important empirical research in a number of areas. The ALRC also engaged in a broad-based, national, community consultation program, releasing six preliminary consultation documents, six issues papers, a background paper and a major Discussion Paper: Review of the Federal Civil Justice System (DP 62). The ALRC met with, and received approximately 400 written submissions from, litigants, lawyers and legal professional associations, community groups, state and federal legal aid commissions, community legal centres, legal academics and legal educational institutions, government departments and agencies, and the various federal courts and merits review tribunals.

The inquiry was completed with the tabling of Managing Justice in Parliament on 17 February 2000. The final report contains 138 recommendations covering a wide range of issues and problems—and aimed at the variety of participants and institutions which influence the general quality, and the particular practices and procedures, of the federal civil justice system.

The Government’s formal response addresses each of the recommendations of the report, and notes that ‘almost half of the Commission’s 138 recommendations are directed at procedural matters that are primarily the responsibility of the federal courts and tribunals’. ‘Some recommendations are addressed to legal practice and legal professional bodies, in particular the Law Council of Australia. Some are directed to universities and other bodies with responsibilities for legal education. The remaining recommendations are matters for the Government.’

The Government’s response notes that the report calls for a holistic approach, and ‘rightly places responsibility’ for the system on many bodies and individuals, in addition to government...

[w]hat is needed from among all those responsible for the fairness, effectiveness and accessibility of the federal civil justice system is a range of responses that are tailored to address the range and complexity of legal problems faced by the community.

The Government notes that many of the ALRC’s recommendations already have been implemented through:

• the establishment of an Australian Judicial College (in August 2002);

• the establishment of a Council of Australasian Tribunals (which met for the first time in June 2002);

• the development of a Guide to Standards of Conduct for Tribunal Members (published in September 2001);

• the establishment of new data collection systems by the federal courts;

• the introduction of arbitration of family law property matters under the Family Law Act by the Family Law Amendment Act 2000 (Cth);

• the amendment of the Federal Court Act to allow a single judge to dismiss an appeal for want of prosecution or for failure to comply with a direction of the Court;

• increased community access to legal information through the Australian Law Online website established in June 2001; and

• the evaluation of the Family Law Assistance Program (completed in April 2001).

Other recommendations have Government support, but are yet to be implemented. These include the development of nationally uniform laws for the regulation of the legal profession, including rules relating to costs disclosure;² a protocol governing the handling of serious complaints against federal judicial officers;³ and a ‘best practice’ blueprint applicable to dispute avoidance, management and resolution for federal government departments and agencies.

Some ALRC recommendations did not receive Government support, including those relating to the abolition of the distinction between corporations and non-corporations for determining the rate of court fees; and the expansion of the Government’s dedicated ‘expensive case’ legal aid fund. Most of these are relatively minor, one-off issues—their non-implementation, in isolation, does not detract from the Government’s general support for the Commission’s recommendations.

A number of other recommendations continue to be considered and debated in a range of different organisations and forums. The Government’s response identified a number of these ongoing issues, including: the establishment of an Australian Academy of Law; review of Part IVA of the Federal Court Act on class actions; the institution of event-based fee scales; a single scale for setting court fees in the federal jurisdiction; and review of the Commonwealth ‘model litigant’ obligation. The Government stated that it will continue to refer to the report ‘in equipping the federal civil justice system to meet the challenges of the future’. It is expected that the report will continue to influence reforms in years to come.

The Managing Justice report, further information on implementation of its recommendations, and the full text of the Government’s response to the report are available on the ALRC’s website at <www.alrc.gov.au>.

Copies of the report—in CD or book format—can be purchased from the ALRC.

Endnotes

1. The ALRC’s report on the Judiciary Act—The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation (ALRC 92), and the final report of the Attorney-General’s National Pro Bono Task Force—chaired by the ALRC President—are also central to the development of this strategy.

2. On 7 August 2003, the Attorney-General announced that Commonwealth, state and territory Attorneys-General (SCAG) had agreed to endorse comprehensive model provisions as a basis for consistent laws to facilitate a national legal profession.

3. The Attorney-General’s Department has produced a draft protocol, which is currently being considered by the federal courts.