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| Speeches
The Role of Specialist Courts - an Australian Perspective
Justice Michael Moore
1 December 2001
1. Introduction
In Australia, as in many other common law jurisdictions, the court system may be described broadly as comprising
'general' courts and 'specialist' courts. 'General' courts are courts exercising general jurisdiction over a wide range of matters.
'Specialist court' is an apt description of a court with jurisdiction limited to hearing and determining matters in a confined area
of the law or a limited field of human activity. This paper considers the role of specialist courts at a trial level and discusses
the benefits and disadvantages of such courts, with particular reference to two Australian specialist courts.
It is not possible to identify, with precision, the characteristics of a court that renders one or the other description appropriate.
For example the Federal Court of Australia can be viewed as a court of general jurisdiction even though it derives its primary jurisdiction
from a number of Acts of the Australian Parliament and does not have, for practical purposes, a criminal jurisdiction. However its
jurisdiction is sufficiently broad to treat it, for the purposes of the present discussion, as a court of general jurisdiction notwithstanding
limits of substance to that jurisdiction. Indeed, what is to be treated as a court, in contrast to a tribunal, is a more fundamental
question of some complexity that can intrude into a discussion of specialist courts. However, and notwithstanding potential problems
of definition, the dichotomy between specialist and general courts is one that can be considered at a fairly abstract level without
compromising a discussion of the issues.
2. Specialist courts generally
Many of the issues which arise in considering the role and place of specialist courts in the legal system readily
transform into issues of fundamental importance relating to courts more generally and the judiciary more generally. It is convenient
to commence by considering the role of courts and outlining the competing views about the place of specialist courts in fulfilling
that role. The focus of this paper is on the role of specialist courts in Australia, a country with Western democratic traditions
founded on a Westminster system of government. In Australia, that system of government is based on the principle of the separation
of powers. The source of the principle and its contents have been described as follows:
The principle of separation of powers is invariably linked with the names Locke and Montesquieu, though it had its origin in Aristotle's
Politics. . [The] distinction was reformulated by Montesquieu into the now classical distinction between legislative, executive and
judicial powers. . He expressed on principle in these terms:
"When the legislative and executive powers are vested in the same person, or in the same body of magistrates, there can be no liberty;
because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again there is no liberty if the judicial power be not separated from the legislative and executive. Were it joined with the legislative,
the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined
to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise these
three power. That of enacting laws, that of executing the public resolutions, and that of trying the causes of individuals."
Separation of the legislative, executive and judicial powers was thus essential for the establishment and maintenance of political
liberty.
Courts provide an open and independent forum to which citizens can come to assert or establish legal rights as between themselves
(or as against the state) and to receive an enforceable determination of those rights. They are also an open and independent forum
in which the state enforces a code of conduct through the criminal laws. However the role of courts is increasingly being viewed
not only in terms of outcomes but also of process. There is a belief that the process of litigation should be just, accessible, efficient,
timely and effective. Courts should be accessible and there should be consistency in process and result. A study in the United States
has suggested that a measure of court performance is whether the court process invokes public trust and confidence. This is achieved
by ensuring that the courts are perceived by the public as accessible, that basic court functions are conducted expeditiously, fairly
and with integrity, and that there is a public perception of independence and accountability.
These statements of general principle provide something of a yardstick for assessing whether this role should be fulfilled within
and restricted to an integrated structure of general courts, or through a system which includes, as a supplement to the general courts
system, specialist courts which exercise specific jurisdiction in particular areas of the law.
It is not possible to identify a universal rule which explains why, from time to time, specialist courts are established. Sir Laurence
Street, the Chief Justice of New South Wales between June 1974 and November 1988, has suggested that 'every time a new dispute situation
is recognised there seems to be a tendency to create a specialist court to deal with it' . However the formation of a specialist
court appears to be generally linked to a perception (at least by the legislature, if not the community more generally) that the
resolution of disputes in a particular area of the law or concerning a particular human activity requires either a particular type
of judicial expertise or a particular process of judicial adjudication or both. Specialist courts might, as a result, be established
in areas that have not traditionally been dealt with by the general courts, with a high public policy or technical content, or in
areas where it may have been perceived that existing procedures were not sufficiently flexible or were inappropriate. One commentator
has suggested that specialist courts are established to encourage informality and speed in hearing cases and to avoid some of the
costs and delays perceived to be inherent in litigation in the general courts.
If these objectives are met then specialist courts would plainly satisfy the criteria referred to earlier, namely that courts should
be accessible, efficient, timely and effective. Indeed, it has been suggested by one Australian commentator, Professor Robert Baxt,
that in an era where litigation (particularly commercial litigation) is becoming more complex and time consuming, it is both sensible
and pragmatic to establish specialist courts to deal with areas that can be clearly identified as requiring specialised treatment
(such as taxation and competition law). This would lead to greater efficiency in the judicial system and the emergence of decisions
more reflective of the intricacies of business. While Professor Baxt endorses the current approach of the Federal Court of Australia,
which operates a docket system of case management involving specialist panels of judges, he suggests that next step should be the
establishment of specialist courts.
However the establishment of a specialist court, whatever its advantages, carries with it certain costs and risks. Indeed, at the
heart of the debate for and against specialist courts is the question of how readily these costs and risks should be accepted. One
important facet of specialist courts is that they are established by statute often to function in areas that may be politically or
socially contentious and as such are always vulnerable to abolition in the face of changing political or social values. This may
encourage the perception that the administration of justice is being weakened rather than strengthened. This is to be contrasted
to the comparatively more secure position of the superior courts of general jurisdiction, such as the Supreme Courts of a state,
territory or province which will continue to provide, with relative certainty, a forum in which a citizen can litigate to vindicate
his or her rights under the law.
Apart from vulnerability to abolition, there are three key themes which recur in the literature relating to the specialist court debate.
First, there is the concern that specialist courts create undesirable duplication and overlapping of jurisdiction. Second, it is
argued that proliferation and fragmentation of the court system has the potential to undermine the legitimacy of the justice system
as a whole. The third concern is that formation of specialist courts as a reaction against the failings of the general court system
may stultify reform to that system. Failure to confer novel jurisdictions on the general courts may create or reinforce an impression
that they are excessively formal or 'inexpert'. This poses problems for a coherent court structure and may undermine the ability
of courts to respond to the changing needs of society.
2.1. Duplication, expense and confusion
The costs of forming the separate administration of a specialist court (premises, court staff, and judges)
may be considerable and will probably be more than the equivalent cost of vesting jurisdiction in general courts already established.
This will be all the more so if the creation of a specialist court involves removing existing jurisdiction from the general courts.
These are costs borne by the state. However it has been suggested that a more important cost, borne not by the state but by litigants,
is the potential for jurisdictional conflict and uncertainty. Costs may be thrown away and time wasted if cases are ultimately decided
on jurisdictional grounds rather than on their merits. The greater the number of separate jurisdictions that are created, the greater
the likelihood of such jurisdictional conflict. Commentators point out that it was problems of this type which led to the fundamental
change arising from the integration of the common law and equity jurisdictions under the Judicature Act system. It may be, as suggested
by Sir Laurence Street, that the proliferation of specialist jurisdictions creates real confusion in the minds of the public over
what legal redress is available to them and from what source.
2.2. Proliferation, fragmentation and legitimacy
Some critics of specialist courts believe that their formation results in the fragmentation of the court
system and diminishes its legitimacy. The view is that the creation of specialist courts inevitably diminishes the effectiveness
of the role of general courts as the true guardians of the rights and freedoms of the individual citizen and as the instrument for
maintaining the basic principles of a system of justice. Establishing a specialist court to function in a particular area may satisfy
the requirements of expediency, but a fragmented network of specialist courts and tribunals can make the system susceptible to external
pressures in a manner destructive to the impartiality and integrity that the community expects from its courts. This is particularly
so if specialist courts are continually formed or abolished according to the prevailing political views of those commanding a majority
in parliament. The appointment by an executive, effectively controlled by politicians of a particular political persuasion, of all
the judges of a newly created specialist court may create an appearance of imbalance in the court, impacting on its legitimacy. Fragmentation
of the court system may undermine the appearance of an independent court system and weaken the whole fabric of what ought to be an
integrated and all-embracing system of general courts with ultimate responsibility for protecting the democratic rights and freedoms
of citizens.
The essence of this problem was described by Sir Laurence Street when he said:
We cannot take for granted the preservation within our community of our system of justice unless we see to it that the machinery of
justice, the regular courts, are charged with the responsibility and equipped with the jurisdiction to enable them to play a meaningful
part in the affairs of society. Our court system must be integrated and consolidated. It must be able to fulfil its real purpose
as the community's dispute-resolving mechanism. We cannot afford to let the court system be bypassed or its responsibilities to be
fragmented by continually summoning into being new and specialised bodies to service newly-emerging dispute-resolving requirements.
2.3. Avoidance of reform
It has been argued that the creation of specialist courts prevents or inhibits the evolution of the general
courts and their adaptation to change. On this approach the positive features of specialist courts, namely expertise, accessibility
and speed of determination, can and should be achieved within general courts, without the need for a cumbersome court framework and
overlapping jurisdiction.
These problems have been described by an Australian constitutional law scholar, Professor James Crawford, who has argued:
What must be avoided is the establishment of special courts not on their merits but as a reaction against the inadequacies of the
ordinary courts, as an easy way of avoiding necessary reform in court procedures and practices. If pre-trial conciliation is desirable
in certain cases, it is desirable in those cases wherever they are decided. If the law of evidence has repeatedly to be excluded
by statute in specialist jurisdictions, then the law of evidence needs reforming. If costs and delays are a problem, then measures
should be taken to reduce them, wherever they occur. The alternative is that the ordinary courts may become an enclave of formality
in a divergent, scattered system, avoided rather than useful, with (relatively) diminishing jurisdiction and correspondingly less
relevant to the needs of the community.
3. Examples of specialist courts
These issues can be tested by an examination of two specialist courts in the Australian context. One is an
example of a court whose special and separate jurisdiction (and that of its antecedents) has been historically controversial, and
the other an example of a court whose creation, although also controversial, is clearly a response to a major and growing social
problem which the general court system may be unable to adequately address. The first example is the Industrial Relations Court of
Australia and the second is the recently established New South Wales Drug Court.
3.1. The Industrial Relations Court of Australia
The Industrial Relations Court of Australia was created in 1994 by legislation passed by the Australian Parliament. Its entire judicial
jurisdiction was transferred back to the Federal Court of Australia in 1996. At that time the Industrial Relations Court of Australia
was effectively abolished though the legal mechanism for achieving its abolition is of some importance which is discussed later.
Before considering the role of the Industrial Relations Court of Australia it is desirable to record something of the more general
debate about the place of specialist industrial courts in a common law system as found in Australia and also to set out briefly the
history of specialist industrial courts in Australia, though only those established at a national or federal level and not state
courts.
The debate surrounding the formation and abolition of specialist industrial courts, or 'labour courts' as they are sometimes described,
is a debate that can probably never be independent of ideological content. The essence of this debate is whether disputes arising
from the employment relationship (either disputes between an employer and an individual employee or collective labour disputes or
both) should be dealt with in the general court system, or whether the special nature of the employment relationship justifies the
creation of a specialist court which may develop a separate body of jurisprudence concerning that relationship. Prominent in the
debate has been Lord Wedderburn who has been an advocate of the development of legal principles peculiar to the employment relationship
and an advocate of specialist labour courts in the United Kingdom. Lord Wedderburn has identified the rationale for this approach
as being that labour law should work to counteract the inequality in bargaining power inherent in the employment relationship. His
Lordship has argued that common law approaches to the employment relationship based on the 'contract of service' are conceptually
inappropriate, and has further suggested that the common law functions to preserve what he describes as the subordination inherent
within the employment relationship. Lord Wedderburn advocated the creation of judicial institutions which develop their jurisprudence
on some basis other than the common law. Labour court judges, he suggested, would be no less 'judicial' than their common law counterparts,
but rather, 'merely tuned to a different logic, experience and policy'.
However this feature of specialist industrial courts has also been the focus of criticism. A retired judge of the Court of Appeal
in New South Wales has written:
At the Bar I had extensive experience with a specialised court, namely the old Commonwealth Industrial Court. The members of that
Court were mainly concerned with union matters, with inter-union brawls and the attempt, though futile, to discipline trade unions.
The court developed relatively fixed attitudes which greatly destroyed their value as neutral judges. As they were solely concerned
with matters of this kind they developed an obsessive interest in cases involving trade unions and employer organisations. They also
acquired a deep knowledge of the politics involved in these battles. None of this was good for their judicial performance.
A further argument in support of specialist industrial courts is that they can adopt procedures more appropriate to the limited class
of matters with which they deal. The President of the former United Kingdom National Industrial Relations Court, Sir John Donaldson,
commented at the time of the abolition of that court in 1974 on the procedures it had adopted:
It is true that most litigation in the ordinary courts is concerned with human relationships and that Industrial Relations are
just human relations in the work place. However, it is a continuing relationship. The parties have got to continue to live and work
together. Not only does this mean that an amicable settlement is of vital importance, but it must be reached speedily and the court's
procedures must be designed to reduce and not increase the hostility between the parties.
The procedure of the ordinary courts not only reflects an older era of jury trials and a semi-literate population, but by its use
of the adversary system with pre-trial pleadings and the opposing of one party's case with the other's, it tends to heighten and
highlight the differences between the parties. This is not to say that there is not a place in an Industrial Court for examination
and cross-examination. There is, because it is by far the most effective method for getting at the truth. But it should only be used
where there are relevant differences in the stories of the parties and event then it should be confined to an examination of those
differences. One of the most unexpected lessons to emerge from the Industrial Court experiment was how rarely this situation arose.
It may have been the result of creating a sympathetic and helpful atmosphere in the court. More probably, the speed with which the
court acted led to witnesses speaking from very recent recollection. Whatever the reason, the parties were almost always agreed upon
what had happened, although they often differed as to why it had happened and as to how the other party could be expected to behave
in the future.
The development of specialist federal industrial courts in Australia began early in the nation's history. There have been only two
periods in Australia's federal history since 1904 where there has not been a specialist labour or industrial court, though the nature
and scope of the jurisdiction of the court has varied.
The first specialist industrial court, the Commonwealth Court of Conciliation and Arbitration was established in 1904 and its role
was to conciliate and arbitrate collective labour disputes as well as to enforce its orders and awards and to enforce provisions
of the legislation which established it (the Conciliation and Arbitration Act 1904 (Cth) ("C&A Act")). The Court's jurisdiction
was generally limited to resolving collective labour disputes and not individual disputes other than through the enforcement of the
award entitlements of an individual employee. The C&A Act, in its original form, contained a blanket prohibition on strikes and
lockouts 'on account of any industrial dispute' though the statutory prohibition on industrial action was repealed in 1930. The Court's
functions were hybrid. It had the role of what in essence was to legislate working standards that employers had to meet as a means
of settling collective labour disputes by compulsory arbitration and the more traditional judicial role of enforcing rights arising
under the C&A Act or awards made under it. This limited role of the Court, which generally did not involve consideration of individual
labour disputes, reflected what then were perceived to be limits on the powers of the Australian Parliament under the Australian
Constitution to legislate in relation to labour disputes.
The Parliamentary debates of 1904 about the Conciliation and Arbitration Bill are illuminating. The following are two extracts of
the Parliamentary debates which provide some indication of why a system of compulsory arbitration was established:
- It is sufficient for my purpose if it establishes the necessity of bringing both employers and employees under the control of the
law, and of endeavouring to obtain the creation of an impartial tribunal which shall mete out even-handed justice between them. It
may happen that in some countries in which the law favours the interests of employers, it would be resisted by that section of the
community, while in others, as conceivably in the case of New York, it would be resisted by the employees. But this measure is aimed
just as much at the existence of such a condition of things as that to which the article alludes - a condition created by the tyranny
of trades unions - as it is to cope with the tyranny of employers. Its object is to forbid tyranny on both sides, and as far as may
be possible, to introduce into our industrial system a new standard which shall apply to all persons concerned, subject to the interests
of the whole.
and,
- Our object is to see that, where other circumstances are equal, one and all shall pay the same and that a fair rate of wage for the
same services; that competition, which is the life-blood of trade, shall not drain the life-blood of men, may not be pushed to that
extreme, and that the advantage of the employer on the one side shall not be gained over the employer on the other, at the expense
of men, women and children whom he employs. Equality of treatment in business in the first end which is sought to be attained. Traders,
investors, and capitalists, as between each other should fight fairly. Let them pick their men as the please, and obtain the best
ability they can. Having done that, they are to compete against each other by means of the skilled labour they have thus secured,
but not at the expense of those whom they employ.
Within the first decade and a half of its existence, the Court became embroiled in controversy and there were several bitter and often
public exchanges between the second President of the Court, Justice H. B. Higgins, and various politicians, including the Prime Minister
of Australia. One aspect of the controversy concerned the status of the Court and the following are the views of a critic of the
Court at this time:
You cannot make a thing a Court by calling it a Court. You cannot make functions judicial by calling the place where they are administered
a Court.. It [the Arbitration Court] is a subordinate legislative department of the Government. I am not sure that at the present
moment it is not one of the most important legislative departments in existence in Australia. What it does is legislation. It is
not a Court.
From 1904 until 1956 the role of the judges of the Court of Conciliation and Arbitration was periodically redefined by changes made
by the Australian Parliament to the legislation establishing the Court's jurisdiction. The scope and nature of the powers the Court
exercised were significantly influenced by the many decisions of the High Court of Australia concerning both the constitutional powers
of the Australian Parliament to legislate in relation to labour disputes and the interpretation of the legislation itself. The effective
abolition of the Court of Conciliation and Arbitration in 1956 followed a decision of the High Court in that year, deciding that
the judicial power of the Commonwealth could not be exercised by judges exercising non-judicial functions as well. However at the
time of the effective abolition of the Court of Conciliation and Arbitration it was being criticised as being too formal and too
legalistic in dealing with matters within its jurisdiction.
After this decision of the High Court, the Australian Parliament passed legislation establishing a tribunal, the Commonwealth Conciliation
and Arbitration Commission and another specialist industrial court, the Commonwealth Industrial Court. The judges of the Court of
Conciliation and Arbitration were appointed either to the Commission or the Commonwealth Industrial Court. The specialist Industrial
Court had a limited jurisdiction which was similar to that of the Court of Conciliation and Arbitration except that the role of settling
collective labour disputes by effectively legislating minimum labour standards was conferred on the Conciliation and Arbitration
Commission. Even though the Commission was a tribunal and not a court, some members of the Commission (the Presidential members)
were given the status, rank and title of federal judges.
This general structure created by the Australian Parliament in 1956 remained until 1976 when the Federal Court of Australia was established.
That court was invested with the jurisdiction of the Federal Court of Bankruptcy and the Commonwealth Industrial Court and both these
courts were effectively abolished. When the Federal Court was established it had two Divisions, one of which was the Industrial Division.
However most judges appointed to the Court were appointed to both Divisions and all judges could exercise jurisdiction in both Divisions.
The question of whether judges with expertise in industrial law would be appointed to the Federal Court of Australia, was an issue
raised in the Parliamentary debates and the Attorney-General said:
The judges of the new court will number twenty. . To some extent they will be specialist judges sitting in the industrial division
or in specialist matters such as taxation and industrial property. I was asked about appointments to the industrial division . these
are matters that will be discussed with individual judges and, as the Bill provides, some judges can be assigned to one division
and some to another. However, the question of what division judges go to will be discussed with individual judges.
From 1976 the respective roles of the Federal Court and the Conciliation and Arbitration Commission remained essentially the same
until 1989 when the Australian Industrial Relations Commission was established and the Conciliation and Arbitration Commission was
abolished. As noted earlier, the Conciliation and Arbitration Commission was a tribunal though some of its members were given, by
statute, the status, rank and title of a federal judge. All but one of the members of the former Commission were appointed to the
newly established Commission. The failure of the executive government to appoint that one member sparked a public controversy that
endured for months. While it concerned a member of a tribunal and not a court, that distinction was probably not understood or well
understood by the public. That controversy could not have heightened public confidence in the system of justice and probably damaged
it.
In 1994 the Industrial Relations Court of Australia was established and assumed the industrial jurisdiction formerly exercised by
the Federal Court of Australia. When the Industrial Relations Court of Australia was established the judges initially appointed to
the Court were all, with one exception, existing judges of the Federal Court of Australia. The formation of the court in this way
attracted critical political comment.
In support of the formation of a new specialist industrial court, the Minister introducing the legislation in the Australian Parliament
said:
The bill provides for a new specialist federal court, the Industrial Relations Court of Australia. As a result the industrial relations
jurisdiction of the Federal Court of Australia will be absorbed into the new court. This will include:
- the enforcement and interpretation of awards and other orders of the commission
- certain matters concerning registered organisations and their members; and
- actions brought for the contravention of the prohibition on industrial secondary boycotts.
In addition the court will enforce employees' entitlements under the new minimum entitlements provisions that are based on international
conventions.
However no explanation was given about the need for this specialist court or the rationale for its creation.
The Industrial Relations Court of Australia was invested with not only the subsisting federal jurisdiction concerning legal issues
arising from the settlement of collective labour disputes of the type exercised by the Commonwealth Industrial Court and Federal
Court of Australia but also jurisdiction to deal with aspects of individual labour disputes. It was given jurisdiction to deal with
the dismissal of an employee where the dismissal was unlawful (generally by reference to standards derived from international conventions
but embodied in federal legislation). Conferring this jurisdiction on a federal specialist industrial court was novel. It was also
politically contentious in the sense that the introduction of federal laws regulating the manner and circumstances in which an employee
could be dismissed and providing a mechanism for the enforcement of these laws was opposed, and it can fairly be said trenchantly
opposed, by the federal parliamentary opposition. After its formation the Industrial Relations Court of Australia adopted a range
of innovative procedures for dealing with matters within its jurisdiction and began to develop a body of jurisprudence concerning,
in particular, the unlawful dismissal laws enacted by the Australian Parliament when the court was established.
However in 1996 there was a change of government at the federal level and a consequential change in federal industrial relations policy.
In the result the Australian Parliament effectively abolished the Industrial Relations Court of Australia in 1996. Reference has
been made to this notion of "effective abolition" on several occasions in this article in relation to the Commonwealth Court of Conciliation
and Arbitration, the Commonwealth Industrial Court and the Industrial Relations Court of Australia. At the end of the life of each
specialist industrial court, the jurisdiction was conferred on another court. In one instance it was conferred on another specialist
industrial court and in the other two instances it was conferred on a general court. However when each of the specialist industrial
courts lost its jurisdiction, its bare legal existence was preserved and the judges appointed to the court remained judges of it.
This mechanism was adopted to give effect to the convention, if not constitutional requirement, that federal judges, once appointed,
should be able to remain in office for life, or more recently, until retiring age.
When the legislation to effectively abolish the Industrial Relations Court of Australia was introduced, the Commonwealth Attorney-General,
Mr Daryl Williams, spoke of the court's practices and procedures and said:
Despite the reluctance with which [the Industrial Relations Court's] birth was greeted - at least by the Coalition - the court has,
from its beginning, carried out its responsibilities with the high level of skill and dedication which the community has come to
expect from the Federal Court. Whatever we may think of the need for an industrial relations court, it was established and it had
a charter of work that it carried out effectively.
The Chief Justice of the Industrial Relations Court, Chief Justice Murray Wilcox . has a strong commitment to promoting the principles
of access to justice. Under his leadership, the court introduced a range of user-friendly practices and procedures, including reducing
documentation and simplifying application forms, introducing a minimal adjournments policy, and abandoning the wearing of wigs by
judges and the wearing of wigs and gowns by advocates appearing before the court.
The user related reforms also included the release of a client information brochure and establishment of a court user group to consult
on developments and procedures. The Federal Court is also examining a number of these areas, and I am confident that the clients
of its industrial jurisdiction will in future benefit from the enlightened judicial administration practices developed in the Industrial
Relations Court of Australia.
What this history illustrates about specialist industrial courts in Australia is perhaps three things. The first is that the perceived
need for and role of such courts is essentially the result of the prevailing political views reflected in the workings of the Australian
Parliament. The second is that while the Australian Parliament has the undoubted prerogative to both establish and abolish specialist
industrial courts (and included, for present purposes, is the abolition of the Australian Conciliation and Arbitration Commission),
unless the judges of a court being abolished are dealt with appropriately, real damage can be done to the independence of the judiciary
more generally. The third is that specialist industrial courts can be or become formal and legalistic but, on the other hand, can
also provide a forum for dealing with an important area of law of fundamental importance to many in the community in a way that can
satisfy the objectives of a court system referred to at the beginning of this article.
3.2. The Drug Court
In February 1999 the Government of the state of New South Wales launched a two year pilot project involving the formation of a specialist
drug court. The court is the first of its kind in Australia and is a specialist court with responsibility for handling offences committed
by people who are dependent on prohibited drugs. It was established by the New South Wales Parliament and exercises the criminal
jurisdiction of the District and Local Courts of New South Wales. As a pilot project, the New South Wales Drug Court represents an
experiment in the Australian context of a program that has been widely used elsewhere, particularly in the United States of America.
Before discussing the jurisdiction and procedures of the Drug Court, mention should be made of how specialist drug courts have evolved
more generally. There are a number of drug court models in existence, the focus of this discussion is on those that are treatment-oriented.
That is, courts whose role is not merely to deal with drug-related cases quickly, but also to incorporate procedures for treatment
and rehabilitation options within the court's jurisdiction. In the United States such courts have been defined as 'courts specifically
designated to administer cases referred for judicially supervised drug treatment and rehabilitation within a jurisdiction or court-enforced
drug treatment program'.
Treatment-oriented drug courts were first introduced in the United States in the late 1980s, the first court being established in
Dade County, Miami, Florida in June 1989. The impetus for the creation of such courts came from the judiciary, based on a belief
held by many judges faced with drug-dependent offenders that the traditional adversarial system of criminal justice was failing to
meet the demands of these type of offences. Drug offenders were moving through the criminal justice system in a predictable pattern
of arrest, prosecution, conviction, incarceration and release. Frequently, the offender would re-offend and the pattern would be
repeated. This process did not break the cycle of repeat drug-related offences, but it was in many ways an understandable and predictable
result of the nature of the traditional adversarial court system. That is, an offender may seek to contest a charge, and defending
the charge will distract attention from the root cause of the criminal conduct, which is drug dependency. Moreover the process of
contesting a charge in the adversarial system may reinforce an offender's denial of the existence of a drug problem. The United States
drug court experiment aimed to re-evaluate the relationship between drug dependency and the commission of offences, and the wider
relationship between the criminal justice system and drug treatment services. The idea was well received because it became increasingly
apparent that treatment providers and criminal law practitioners shared common goals namely, stopping the illicit use and abuse of
all addictive substances and curtailing related criminal activity.
The basic concept of the drug court, which will be examined in more detail by reference to the New South Wales model, is that offenders
charged with drug-related offences elect, by pleading guilty to their charge, to undertake a program of treatment and rehabilitation
for their addiction rather than face the usual penalty for the relevant offence, which in most cases is a period of incarceration.
The program works on a system of sanctions and incentives. Successful involvement in the drug court program may mean the offender
both avoids incarceration and treats, if not cures, the drug dependency that led to their criminal activity. With substantial supervision
and control by the court over the offender, a successful drug court program may break the conviction-incarceration-release cycle,
and in so doing, alleviate a major burden on the criminal justice system. However most drug court programs have the common characteristic
that if program conditions are significantly breached, the offender is removed from the program and faces the usual penalty for the
crime.
With the court as coordinator, drug court programs aim to reflect community concerns and priorities, access community resources, include
community organisations in policy-making decisions, and seek general community participation and support. Drug court programs and
related services are intended to be sensitive to and demonstrate an awareness of the populations they serve and the communities in
which they operate. They are intended to create an environment with clear and certain rules that are easy to understand, and compliance
is within the individual's control. Clear choices are presented and individuals are encouraged to take control of their own recovery.
In the United States, drug courts are no longer part of a small isolated movement operating on the periphery of the United States
criminal justice system. There are approximately 400 such courts in existence and they have considerable support at the political
level and receive extensive federal funding. The drug courts, however, must be considered in context. That is, it is necessary to
consider what the role of the specialist court is, and what the implications are for the courts generally. In the United States context,
it has been argued that drug courts help to restore public confidence in the criminal justice system. However treatment-oriented
courts signify a radical shift in the role of courts. A drug court is not simply an adjudicative institution. It also has a role
in shaping policy in relation to social problems that impact the court's effectiveness as an institution. The drug court judge does
not have the conventional role of taking a neutral position in the resolution of conflict. Rather, in drug courts the judge is partisan
and aims to cure the offender. Furthermore, the drug court judge coordinates a process that is highly intrusive into the offender's
life, or at least arguably more intrusive than a process of conviction and short sentence.
The development of specialist drug courts is a contentious issue. Advocates of such courts say that they represent an important innovation
in criminal justice with implications far beyond the treatment of drug offenders. They see drug courts as breaking down existing
structures, responding to real community needs and posing different jurisprudential questions. Opponents regard drug courts with
suspicion. They dislike the 'free-flowing' atmosphere in some courts and see them as weakening the adversarial system, damaging the
offender's legal rights, and confusing the judge's role with that of a social worker. Yet in terms of case management, it is clear
from the United States experience that judges, prosecutors and defenders assigned to drug courts become specialists in the field
and are able to process cases more quickly and efficiently, thereby reducing pending caseloads and relieving crowded drug dockets.
However the limitations of the drug court model must also be borne in mind. Although US research suggests that drug courts have generally
met or exceeded the expectations of those involved in their planning and operation, it is equally emphasised that one must be realistic
about what a drug court can and cannot do. Flexibility is necessary in dealing with drug-related offenders. Chronic, drug-dependent
offenders are an extremely difficult treatment group, and relapse must realistically be expected as part of the recovery process.
How flexible the drug courts should be is likely to be a significant issue when assessments are made about the effectiveness and
legitimacy of drug courts as part of the wider criminal justice system.
As earlier noted, the drug court concept has only been recently introduced to the Australian context. When introducing the Drug Court
Bill into the New South Wales Parliament, the Minister for Police described the Drug Court program as representing 'an ethically
defensible form of legally coerced treatment for drug-dependent offenders'. The Minister noted that a key part of the program's philosophy
was the fact that the prospect of imprisonment 'hangs over' the offender, and as such, the Drug Court program marries a set of incentives
and sanctions into the case management of individual offenders. The judge presiding over the Drug Court would be attuned to the particular
problems associated with dealing with drug-dependent offenders and would be familiar with treatment methods and approaches. Importantly,
the Minister pointed out that under the Drug Court model, the nature of judicial supervision would differ significantly from what
is usually involved in core judicial duties, and would involve an innovative and hands-on approach being taken by the judge.
The New South Wales Drug Court Act 1998 ("the Act") reflects these intentions. The object of the Act is to reduce the level of criminal activity associated with drug dependency. It establishes a court of record to be known as the
Drug Court of New South Wales. All proceedings in the court are to be heard and disposed of before a judge, who is a judge of the
District Court and proceedings are to be conducted with as little formality and technicality and with as much expedition as possible.
The Drug Court is not bound by the rules of evidence and may inform itself in any manner it considers appropriate. If the court decides
an offender is eligible for the drug court program and is willing to obey the conditions of the court, the offender is asked to plead
guilty to the offence charged and the Drug Court then convicts and sentences the offender accordingly. That sentence is suspended
while the offender successfully participates in the program. The sentence is reviewed, and becomes a final sentence, at the end of
the offender's participation in the program. The final sentence may be influenced by the extent and success of the offender's participation.
A participant will breach the Drug Court program if, inter alia, they take prohibited drugs or fail to provide a sample for drug testing,
commit further offences, fail to comply with the drug treatment plan or fail to attend Court when required to do so. The offender
has no right of appeal against any decisions made by the Drug Court in relation to the decision to accept or not to accept them into
the program or against any sentence imposed by the Drug Court, except the final sentence which is appealable to the New South Wales
Court of Criminal Appeal. Decisions given by the Drug Court so far have focussed on whether certain offenders should continue in
the drug court program and on what offences should be characterised as offences involving "violent conduct", which is not defined
in the Act. The commission of an offence involving violent conduct renders an offender ineligible to enter the Drug Court program, irrespective
of the offender's willingness or desire to participate.
The New South Wales specialist Drug Court project is novel and recent. Indeed, it is sufficiently recent to mean that no participant
has yet completed the 12 month program. Thus evaluation of its success and community acceptance is yet to emerge. However one result
of the recent Drug Summit conducted by the New South Wales Government was a recommendation that the pilot drug court project be extended.
4. Conclusions
The arguments for and against specialist courts are bound up in a series of questions about what communities expect from courts
and systems of justice. Those questions are answered through the parliamentary political process. There is a place for specialist
courts but caution has to be exercised by the legislature in creating them and abolishing them. Specialist drug courts to deal with
a widespread and pernicious social problem are a contemporary example of a court that has a role of some importance, probably best
performed by a specialist court. The competing arguments concerning specialist industrial courts are more in the balance but a case
for them does exist. Increasingly, any support for specialist courts is dependent on those courts meeting the objectives referred
to at the beginning of this article: namely, to aim for court processes and outcomes that are just, accessible, efficient, timely
and effective and undertaken impartially. Ultimately, however, the place of courts, specialist or general, in the social fabric will
depend in large measure on the dedication and integrity of the judges who constitute them and the support they command from the community
and its elected political representatives.
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