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Sackville, Justice Ronald --- "Courts in transition: an Australian view" (FCA) [2003] FedJSchol 5


NEW ZEALAND COURT OF APPEAL/HIGH COURT JUDGES’ AND MASTERS’ CONFERENCE


COURTS IN TRANSITION:
AN AUSTRALIAN VIEW


by


Justice Ronald Sackville*


The Grand Chateau, Mt Ruapehu,
New Zealand
20-23 March 2003


* Judge, Federal Court of Australia



The Adversary System under Challenge
The New Zealand justice system is undergoing a process of vigorous scrutiny and, so it seems from afar, significant change. The Law Commission is well into its review of “the structure of all state-based adjudicative bodies for New Zealand”, having moved from “striking the balance”[1] to “seeking solutions”.[2] A separate report has addressed what is said to be the lack of a co-ordinated approach to the appointment, discipline and removal of judicial and quasi-judicial appointments.[3] This flurry of activity has coincided with the introduction of legislation abolishing appeals to the Privy Council and creating a five member Supreme Court as the final court of appeal for the country.[4] This last reform is apparently based on the somewhat radical notion that New Zealanders consider that indigenous judges might be better equipped to interpret and formulate New Zealand law than a body comprised mainly citizens of a country that the High Court of Australia has authoritatively determined to be a foreign power.[5]


The various inquiries into the perceived failings of the New Zealand justice system, although doubtless provoked by local concerns, mirror a consistent pattern in other common law countries. In the United Kingdom, the Woolf Report in 1996 proposed a system of judicial case management which would shift ultimate responsibility for the control of litigation from the litigants and their legal advisers to the courts.[6] These reforms were designed to address the defects Lord Woolf identified in the civil justice system, notably that it was too expensive, too slow, too unequal, too fragmented and too adversarial.[7] In Australia a succession of reports has considered similar problems said to afflict the Australian legal system.[8] The antipodean reforming zeal has culminated (for the time being) in reports of the Australian Law Reform Commission (“ALRC”) addressing the workings of the federal justice system.[9] Similar inquiries have been undertaken in jurisdictions as diverse as Ontario and Ireland.[10]


The reports of these inquiries tend to have a common theme. It is that the justice system is beset by problems of cost, delay and inaccessibility, often attributed to the “unrestrained adversarial culture” engendered by the common law.[11] Citizens are entitled to expect that courts and tribunals will operate fairly, expeditiously and without undue expense. Moreover, the concept of access to justice implies that all individuals, including those of limited means, are entitled to obtain legal advice and assistance and to invoke effective dispute resolution mechanisms to protect their rights and interests. It is the job of the justice system to satisfy these aspirations, so far as is feasible to do so. Consequently, sweeping reforms are required. Echoes of this theme can be discerned clearly in the work of the New Zealand Law Commission[12] and of proponents of case management in the New Zealand courts.[13]


Any searching inquiry into the justice system of a particular country or jurisdiction is very likely to identify significant defects or inadequacies that require remedial action. Sometimes sweeping reforms are necessary to ensure that the system becomes more responsive to the needs and legitimate expectations of litigants and the community at large. No system, however ancient its lineage or exalted its practitioners, can ignore the pressures created by social, economic and technological changes. It is fair to say that courts in the common law tradition have not always excelled at adapting to changes of this kind.


But the reform process carries with it dangers. One is that the desire to enhance access to justice will tempt critics to underestimate the strengths of the system under scrutiny. Trite as the observation may be, courts in common law countries like Australia and New Zealand play an indispensable role not only in resolving disputes but in maintaining the rule of law. It is axiomatic that to perform that role the courts must be independent and impartial, a proposition the origins of which can be traced to Magna Carta and the Act of Settlement 1701.[14] Moreover, courts are constrained by the requirements to dispense justice openly, to conduct hearings in accordance with the rules of procedural fairness and to give reasons for their decisions.


It is these attributes that underpin community acceptance of the legitimacy of judicial decisions and in that sense contribute to public confidence in the judiciary, whatever view may be taken about the wisdom of particular decisions or individual Judges.[15] Public confidence is not the same as public popularity.[16] This point is nicely illustrated by a recent decision of the High Court of Australia invalidating the so-called superannuation “surcharge” as applied to the non-contributory pension schemes of Judges of State Supreme Courts.[17] Predictably enough, the decision, which depended on the discriminatory nature of the tax, was greeted with editorial distaste, one editorialist even darkly hinting that the majority had been swayed by “prejudice or lack of impartiality”[18]. Yet there has been no suggestion, even by the most vehement critics, that the orders of the Court should not be implemented or that the Commonwealth or its agencies are free to disregard the decision or the reasoning of the High Court on the constitutional issues.


It must be remembered, too, that the proper exercise of the judicial function necessarily takes time, if only because of the demands of procedural fairness. If the parties to litigation, whether civil or commercial, are to engage competent professional assistance, as often they must, the process is likely to involve considerable expense. No matter how efficiently it is conducted, litigation is necessarily a labour intensive activity. Accordingly, complaints about the inaccessibility of the justice system, at least so far as they concern the courts, must take account of the fact that


“the pursuit of fundamental objectives, such as fairness and a reasoned approach to adjudication, cannot be undertaken without expense, ‘delays’ and other disadvantages that are capable of creating barriers to access to the court system”.[19]


A second danger of the reform process is that if the drawbacks of the existing system are exaggerated, an attempt will be made to import solutions from other systems without sufficient regard to the legal and social culture of which they form part. An example is the insistence in some quarters that the failures of the adversary system are so egregious that it should be jettisoned and replaced by the so-called inquisitorial system. The inquisitorial system exemplified by the French legal system, so it is often argued, is more concerned with ascertaining the truth and less liable to manipulation by the parties or their legal advisers. The fundamental difficulty with arguments of this kind is that they tend to oversimplify the model being considered for adoption and assume that the institutions and practices of one system can be readily transplanted into what may be a very different political and social system.[20]


The ALRC’s report on Managing Justice canvasses a number of important questions, including the education training and accountability of judges, the regulation of the legal services market,[21] the administration and funding of legal aid, the rules of civil procedure and the operation of case management systems employed by federal courts in Australia. But perhaps the ALRC’s most useful contribution to the access to justice debate is to reject the widely held perception that the Australian justice system is in crisis and cannot survive without drastic surgery. The report acknowledges that there are many “difficult problems” requiring attention, for example the lack of adequate legal representation for many litigants in the justice system and the absence of competitive pressures to reduce legal costs especially for one-off consumers.[22] However, it draws on extensive empirical research to conclude that


“much of the system performs better than many of the institutional participants believe and the anecdotal ‘common wisdom’ suggests”.[23]


In short, any inquiry into the justice system should not too readily assume that the volume of complaints or criticisms necessarily indicates structural flaws in the system that are beyond repair.


In the same vein, the ALRC firmly dismisses the contention that the adversary system is so flawed that it should be overthrown.[24] It points out that the “adversarial - non-adversarial construct” is too elusive a basis on which to analyse problems or formulate proposals. Among other things, the protagonists tend to compare the perceived shortcomings of one system with an idealised version of the other. Indeed, the terms “adversarial” and “inquisitorial” have no fixed meaning. For example, in the Australian civil justice system processes such as case management, court-annexed alternative dispute resolution and discretionary rules of evidence and procedure have modified the adversarial nature of the system. Conversely, the characteristics of various “inquisitorial” systems not only vary among themselves, but the European paradigms, in practice, tend to converge with the adversarial system with which they are often contrasted.


Constitutional Constraints in Australia
It is within this framework that the Australian experience should be considered by those contemplating reform of the New Zealand court system. There are of course those parallels between the Australian and New Zealand legal systems, as befits two neighbouring countries with such close historical, social and cultural links. Indeed, in some respects, particularly by the enactment of legislation designed to create a single trans-Tasman market in goods and services, the Australian and New Zealand legal systems are closely integrated.[25]


Even so, any comparative analysis must take account of the very considerable differences between the two legal systems, most obviously the differences between the two constitutional structures. New Zealand, which has been abandoned in more ways than one by her imperial parent, belongs to the dwindling band of unitary states. In consequence, despite the enactment of an unentrenched bill of rights,[26] the New Zealand courts do not enjoy the powers and responsibilities that go with judicial review of legislative action.[27] By contrast, Australia has a federal constitutional structure in which judicial review of Commonwealth and State legislation on constitutional grounds has been treated as axiomatic from the outset. The High Court’s rejection of the cross-vesting scheme, which was designed to allow federal courts to exercise jurisdiction in matters arising exclusively under State law, is a potent reminder of the constraints of federalism.[28]


Chapter III of the Australian Constitution, which provides for a federal judicature, forecloses for the federal courts consideration of what otherwise might be important policy questions worthy of careful consideration. For example, s 72(ii) of the Constitution provides Judges of the High Court and other federal courts[29] cannot be removed from office except by the Governor-General or an address from both Houses of Parliament praying for such removal on the ground of proved misbehaviour or incapacity. The appointment of such a Judge must be for a term expiring upon his or her attaining the age of 70.[30] It follows that federal Judges in Australia cannot be appointed for a fixed term of years. Nor can federal courts utilise the services of acting Judges, although there would seem to be no constitutional objection to providing for part-time judges enjoying security of tenure as contemplated by Ch III of the Constitution. By contrast, in New Zealand there is no constitutional impediment to members of bodies classified as courts holding office for a fixed term,[31] nor to the use of “Acting Warrants” for retired judges (or, presumably, other persons qualified to act as judges).[32]


Moreover, the Australian doctrine of separation of powers has the consequence that judges of federal courts may exercise only the judicial power of the Commonwealth, while judicial power cannot validly be vested in non-judicial bodies.[33] The concept of judicial power is notoriously difficult to define and in practice there is considerable flexibility, particularly in relation to the functions that can be exercised by “administrative” bodies outside Chapter III, such as the Administrative Appeals Tribunal and the various migration tribunals. Nonetheless, a relatively rigid interpretation of the separation of powers doctrine, developed in recent jurisprudence, has limited the functions that can be performed by federal courts and federal judges[34] and emphasised the uniqueness of the judicial role in a system governed by the rule of law.[35] In this respect the Australian experience contrasts with that of the United States, where the doctrine of separation of powers has not prevented the emergence of federal “judges”, such as magistrates and bankruptcy judges who lack the protection of life tenure granted by Article III of the United States Constitution.[36]


Until the recent flowering of Chapter III jurisprudence in Australia, it had been assumed that State courts were largely free from the constitutional constraints affecting federal courts. While the Commonwealth Parliament could invest State courts with federal jurisdiction, in both civil and criminal matters,[37] it had to take the State courts as it found them.[38] Moreover, Chapter III of the Constitution was thought to have nothing to say about the legislative competence of the States to alter the structure, composition or organisation of State courts.[39] Thus State Parliaments could, for example, confer non-judicial power on a State court even though the constitutional doctrine of separation of powers limited the federal courts to the exercise of judicial power, albeit broadly interpreted.[40] Similarly, there was no constitutional impediment to the use of acting Judges of State courts, a practice very heavily relied upon by some courts especially in New South Wales.[41]


The much debated case of Kable v Director of Public Prosecutions[42] suggests that Chapter III of the Constitution may impose significant constraints on the power of State Parliaments to determine the jurisdiction and organisation of State courts. In Kable, a majority held State legislation, which empowered the Supreme Court of New South Wales to make an order for the preventive detention of a named individual, to be inconsistent with Chapter III and therefore invalid. The State Act and its procedures were said to “compromise the institutional impartiality of the Supreme Court” and to constitute “the antithesis of the judicial process.”[43] The Act therefore (so it was held) invalidly attempted to confer on a court which exercises federal jurisdiction, powers or functions that were incompatible with or repugnant to the exercise of that jurisdiction.[44]


While subsequent decisions have given Kable a narrow interpretation, the case has a twofold significance for present purposes.[45] First, the decision suggests that some important policy questions relating to the State judicial systems in Australia might be “constitutionalised”. For example, it is not inconceivable that the practice of State courts using acting Judges, who do not enjoy security of tenure, will be held to be incompatible with Chapter III of the Constitution.[46] Secondly, Kable illustrates the tendency of the High Court to guard jealously the exercise of judicial power, even in the State courts, from what are perceived to be malign influences.[47] Consequently, issues that might in other jurisdictions like New Zealand be the province of law reform commissioners, policy makers and Parliaments have been resolved in Australia by the courts themselves.


Changes in the Judicial Role
The centrality of Chapter III of the Constitution to the Australian judicial system emphasises the courts in maintaining the rule of law. Yet over the past quarter of a century, notwithstanding the constraints of Chapter III, profound changes have occurred in the way in which the Australian courts perform that role. These changes have altered the relationship between the courts and governments as well as the relationship between the courts and the wider community.


Judicial Self-Governance
Perhaps the most important single development has been the widespread acceptance of the principle of judicial self-governance.[48] The principle was first implemented in 1979, when legislation transferred responsibility for the administration of the High Court from the Attorney-General’s Department to the Court itself.[49] In 1990, similar legislation conferred self-management in the Federal Court and the Family Court, as well as on the Administrative Appeals Tribunal, the body conducting “merits” appeals in challenges to administrative decisions of government.[50] The legislation was designed, according to the Attorney-General of the day, to place with the courts and the Tribunal


“responsibility for their own administration and provide them with the capacity to operate as they see fit within the resources provided by the Parliament”.[51]


There are differences between the self-governance model adopted by the High Court and that of other federal courts. The High Court, which of course comprises only seven Justices, is administered by the Justices acting in a collegiate fashion. On the other hand, responsibility for managing the administrative affairs of other federal courts is vested in the Chief Justice of each Court.[52]


Judicial self-governance has also been adopted in some, although not all Australian States.[53] In South Australia, for example, legislation provides for a single administration for the State’s courts under the control of the States Courts Administrative Council comprising the State’s chief judicial officers, with the Chief Justice of the Supreme Court having a power of veto over decisions of the Council.[54] A similar proposal has been advanced in Victoria, where it has been said that the “traditional” partnership model, in which a government department is responsible for court administration, is not well regarded by the judiciary.[55]


It is not a necessary consequence of the doctrine of separation of powers nor of the principle of judicial independence that federal courts assume responsibility for their own finances and administration. As Professors Church and Sallmann said in 1991:


“it is not immediately clear to us why executive administration of the court adds much more of a threat to adjudicatory independence than the already unavoidable dependence of courts and the judiciary on the political branches of government for their financial and organisational support.”[56]


This observation receives support from the fact that the High Court, for example, was administered for most of its life by a government department without anyone seriously questioning the Court’s independence or that of the individual Justices, although spirited conflicts sometimes occurred between the responsible Minister and the Court.[57] Similarly, New Zealand, like some Australian States, continues to opt for a system of “[a]dministration by executive department, with regular judicial consultation”.[58] Indeed, some commentators see dangers in the judiciary assuming greater administrative responsibilities, specifically that they will be seen not as a co-equal branch of government, but an ordinary agency competing with others for funds and attention.[59] They point out, as is undeniable, that courts are ultimately dependent on funds allocated by Parliament. Since the appropriation of funds is largely determined in practice by the Executive, there is plainly a risk that judicial self-governance will carry the appearance of independence from the Executive without the substance.


Nevertheless, the triumph of judicial self-governance in Australia, at least in the federal sphere, represents acceptance of the argument, propounded by the judges themselves, that it is central to the notion of judicial independence that courts should control the resources allocated to them.[60] Sometimes the emphasis has been on the appearance of independence, especially in courts where the government or public agencies are repeat litigants, as in the case of criminal prosecutions or judicial review of administrative action. Sometimes the proponents of self-governance have stressed the danger that administration by a government department may intrude into such areas as the listing of criminal cases or the politically sensitive task of compiling statistical information on sentencing.[61]


It is not entirely coincidental that the era of self-governance has coincided with the High Court’s vigorous assertion of constitutional principles designed to preserve the integrity of the judicial power of the Commonwealth. It is true that one is the consequence of Parliamentary conferral of administrative autonomy on federal courts, while the other reflects the judicial refinement of constitutional doctrine. Yet a court which is responsible for its own administration is perhaps more apt to regard the exercise of judicial power as unique and more vulnerable to intrusion by other agencies of government than a court which works closely on a daily basis with a government department.


Whatever the theoretical justification for judicial self-governance, there can be little doubt that it has contributed to the transformation of the role of the courts. At the most basic level, the self-governing courts have become accountable for the management of very substantial budgets and of large numbers of staff. The Federal Court, for example, in the financial year 2001-2002 managed a budget of nearly $A78 million, of which approximately half was spent on salaries and associated expenses.[62] As at 30 June 2002, the Court employed 381 persons as registry staff or as judges’ personal staff.[63]


Self-governance necessarily thrusts the courts into the role of administrators, policy-rulers and planners. Whether formal decision-making responsibility rests with a Chief Justice or a collegiate body of judges, judicial officers in a self-governing court must carry out the full range of administrative tasks characteristic of moderately large public institutions. These tasks require skills that have not necessarily been acquired by the lawyers who are typically appointed to courts, particularly those who have practised as specialist advocates.[64] Judges find that their role includes not merely judging but participating in the administration of the court, including forward planning, a process complicated by the fact that most courts (unlike many other organisations) have little control over their caseload. Consequently judges may find themselves involved in tasks ranging from the selection and installation of new computer systems to the management of personnel in times of financial stringency.


Self-governance also changes the relationship between the courts and other agencies of government. Courts administering large budgets must be directly accountable to Parliament and, ultimately, to the public for the proper and efficient use of resources. In consequence, chief executive officers and even Chief Justices now appear before Parliamentary Committees to answer questions as to the operations of the courts.[65] The appropriate limits to this form of accountability have yet to be explored.


More fundamentally, self-governance has provided a powerful impetus for the courts to become agents for change in the administration of justice. It is difficult enough, in an age when established institutions are increasingly under scrutiny, for any court to avoid addressing systematically such issues as unreasonable delays in listing and resolving cases, lack of continuity in the management of cases, adherence to apparently outmoded and inefficient procedures and the need to utilise technological innovations in court administration. It is impossible for self-governing courts to avoid those issues. There is simply no one else that the courts can plausibly blame if things go wrong, notwithstanding that they ordinarily do not control their own workload and must operate within budgetary constraints. The price of self-governance is necessarily greater accountability, not just for financial management but for the proper administration of the system of justice.


This is not to say that only self-governing courts are sympathetic to procedural reforms or to reassessing the relationship between the courts and members of the public. Nonetheless, the heightened standards of accountability that accompany judicial self-governance have played an important part in encouraging courts, including those which are not yet self-governing, to take the initiative in developing new procedures or managerial strategies to cope with ever-increasing case loads. Whether the changes that have been brought about have been uniformly successful is doubtless a matter for debate. But self-governance has contributed substantially to the courts accepting the need for critical self-evaluation and transforming themselves into active agents for change.


Case Management
The ALRC selected “Managing Justice” as the title for its review of the federal civil justice system, partly because the expression conveys the idea that the


“system works best when judicial officers take an active role in managing proceedings from an early stage.”[66]


This observation reflects the fact that judicial case management is now virtually an article of faith in Australia. The concept has been enthusiastically adopted by both federal and State courts and by courts exercising both civil and criminal jurisdiction.[67] Indeed, there are few Australian courts that do not attempt actively to manage their caseloads with a view to reducing delays and controlling the cost of litigation. The result, despite some caution shown by the High Court,[68] has been precisely the fundamental shift in the dynamics of litigation proposed by Lord Woolf in the United Kingdom, with the courts taking over responsibility for the conduct of litigation from the parties and their advisers.[69]


The basic elements of case management are well known. Two leading United States commentators whose work has been influential in Australia and New Zealand, state the general objectives as follows:[70]


“Court management of case progress as part of an organized, predictable system should assure:

  1. equal treatment of all litigants by the court;
  2. timely disposition consistent with the circumstances of the individual case;
  3. enhancement of the quality of the litigation process; and
  4. public confidence in the court as an institution.”

Two Australian commentators, drawing on the Trial Court Standards of the American Bar Association, identify seven “essential principles” of case management:


Court supervision and control from filing to disposition

These principles are designed to ensure that cases are resolved in a timely fashion and that the resources of the court are used effectively. Case management also aims to identify the issues in dispute at an early stage and, in civil litigation, to encourage the parties to settle the case, preferably well before the scheduled hearing.


Federal and State court systems in the United States have long experience with judicial case management and thus provide a model, or range of models, for adoption in common law countries. The introduction of case management in Australia, however, owes less to the wholesale implementation of a new regime adapted from the United States experience than to responses by individual courts to particular problems confronting them.[72] In some courts, such as the Common Law Division of the Supreme Court of New South Wales, a form of case management was introduced to address serious delays in disposing of high volume personal injury litigation.[73] In others, notably the Federal Court, case management techniques were introduced to allow the judges to supervise the management of a disparate case load. In consequence, each of the case management systems has its own distinctive features.


Several points should be made about the Australian experience of case management. Each is of some significance in determining what lessons that experience holds for other common law jurisdictions.


First, in contrast to the United Kingdom, case management has not generally been imposed on the courts in consequence of recommendations by external bodies, such as independent reviews of the judicial system, but has been implemented by the courts themselves over a long period of time.[74] For example, the Federal Court, from its inception in 1977, adopted what was then the “radical innovation” of individual case management[75] as a means of allowing judges to supervise the conduct of a case from commencement until disposition. This gradual process has the advantage that the courts have been able to adopt procedures suited to the particular caseload and management problems confronting them. The procedures appropriate for a court dealing with high volume litigation involving monetary claims (which are very likely to settle) may not be appropriate for a court with a different case load, such as criminal prosecutions (which are less likely to “settle” and also involve procedural safeguards not applicable to a civil trial). The gradual introduction of case management has also allowed the change of culture on the part of both judges and legal practitioners - universally recognised as a precondition for successful case management – to take place over a period of time.[76] By contrast, the imposition of unfamiliar responsibilities on courts and lawyers is likely to involve considerable dislocation, at least for a transitional period.


The disadvantages of a “bottom up” approach include the risk that different courts will constantly reinvent the case management wheel. This is a particular danger if, as frequently occurs, the experiences of individual courts introducing case management are not adequately documented or evaluated. There is also a risk that the courts will develop procedures designed to fix an obvious and urgent problem, such as a large backlog of cases, without giving sufficient consideration to the interests of stakeholders other than the court itself. An external inquiry not only provides an opportunity for wider public participation, but drives home to the courts that unilateral solutions necessarily have an impact on litigants and legal representatives and may have unintended consequences for the costs of litigation.


Secondly, case management in Australia has been the product of a number of forces. Certainly self-governance has provided a powerful impetus to develop and refine case management systems, but it has been by no means the only factor at work. The Federal Court, for example, introduced individual case management thirteen years prior to self-governance, while the Supreme Court of New South Wales, which has been a leading proponent of case management, has never been fully self-governing.


The courts have undoubtedly seen case management as a practical response to the public perception that the judicial system is in a state of crisis or at least administrative disarray. Like all public institutions, courts in Australia have come under increasing public scrutiny in recent times. The community in general and the media in particular have become much less tolerant of the costs and delays that seem to be inextricably linked with the judicial process. The courts have also recognised that governments are unlikely to accept that the problem of excessive costs and delays will be cured if more resources are allocated to courts and more judges appointed.[77] The creation of two new federal courts in the 1970s (the Federal Court and the Family Court) provided an opportunity to introduce new procedures and inculcate a fresh culture in the conduct of litigation, thereby illustrating Brandeis J’s point that federalism, despite its obstacles to effective decision-making, sometimes does indeed encourage worthwhile experimentation.[78]


The widespread adoption of case management in Australia has also coincided with the emergence of alternative dispute resolution (“ADR”) as a discipline in its own right.[79] The linking of the two developments is not accidental but reflects the symbiotic relationship between ADR and case management. Courts have a strong interest in encouraging early settlement of disputes: this is, after all, one of the principal objectives of case management. Mediators and other practitioners of ADR have an equally strong interest in encouraging litigants to use their services. This commonality of interest has been reinforced by legislation conferring powers on courts to refer matters for mediation or other forms of ADR, whether court-annexed or otherwise.[80]


Thirdly, case management is not a static or uniform concept. To be effective, the system applied by a particular court must be constantly re-assessed and, if necessary, adapted to meet changing circumstances. Certainly, it cannot be assumed that because a court has adopted principles of case management they are working smoothly to resolve the problems they were intended to address. The point is illustrated by the ALRC’s criticism of many case management practices followed in the Family Court. After extensive consultation and detailed empirical work, the ALRC identified a need for more consistent oversight of cases, more flexible and less standardised processing and a change in the “culture of non-compliance” within the Court.[81]


That case management systems evolve over time is illustrated by the Federal Court’s individual docket system (“IDS”). Prior to 1996, the Federal Court’s case management system in the larger registries was married to a master calendar system,
whereby matters for hearing were allocated to Judges according to their availability. A meeting of Judges in 1996 resolved to adopt what has since become known as the IDS and that resolution was implemented throughout the Court by September 1997. The key elements of the IDS have been described by the authors of a recent evaluation as follows:

. cases are randomly allocated at commencement to the docket of the next judge in a rotation, or in specialist list cases, to the next judge in the specialist panel.

The IDS contemplates that cases will be managed on an individual basis, depending on their particular requirements.


The same authors record the objectives of the IDS as stated by the Federal Court:

. the absence of a need to explain a case afresh each time it comes before a judge – it comes before the same judge, who is familiar with it

This statement of objectives omits one important attribute of the IDS. A system of random allocation of cases to dockets removes the role of a Chief Justice or listing judge in deciding which judge will be allocated to a particular case. Subject to arrangements made for specialist panels,[84] each judge has the same chance as any other judge of being allocated a particular case in a given Registry. This system can be said to enhance the independence of individual judges, since the caseload of each judge is not dependent on decisions made by any other judicial officer.


The IDS has been the subject of two recent assessments. The first was conducted by the ALRC and involved consultations with some hundreds of persons including legal practitioners. The ALRC concluded that the IDS in the Federal Court had received the “significant accolade” of “unanimous positive feedback”.[85] The ALRC also noted that the

“benefits identified in IDS are those which derive from the same judge dealing with a case from start to finish. The docket judge knows the case and is able to manage and tailor processes for the particular case. Practitioners strongly supported such judicial management and the individual attention given to cases.”[86]


Without detracting from the conclusion, the ALRC identified a number of concerns. These included the need to develop a national procedures guide to the IDS to correspond with current Court practice and the desirability of addressing the delays that can occur when the docket Judge’s list is too crowded to permit an early hearing date to be provided to the parties.[87]


The second evaluation was conducted by the Justice Research Centre of the Law Foundation of New South Wales with the active cooperation of the Court.[88] The authors did not attempt the formidable task of determining whether the IDS had succeeded in reducing case processing times and the costs of litigation. A systematic evaluation of this kind, having regard to the Federal Court’s varied caseload, would require very substantial resources and encounter formidable methodological difficulties, a point illustrated by the RAND Corporation’s evaluation of the case management regime introduced in the United States by the Federal Courts Civil Reform Act 1990.[89] Rather the authors set out to provide, on the basis of in-depth interviews, an “insight into the experiences, views and practices of participants in the system”.[90]


The evaluation, although confirming general support for the IDS, draws attention to the fact that judges and practitioners do not necessarily share the same perceptions of the system. Judges particularly value the transparency of the random allocation of matters and the sense of autonomy and control over their working lives that the IDS gives them (even though some felt that workloads had increased under the system).[91] Practitioners, however, were particularly concerned by the hazards of the “luck of the draw” and the risk of being placed in an overloaded docket.[92] The report also stressed the importance of a more sophisticated, purpose-designed and centralised information technology support system.[93]


It is often assumed that a research project can readily determine whether a case management system has worked well. The study of the IDS demonstrates that evaluations may not necessarily provide definitive answers to apparently simple questions. In part this is because various stakeholders have different perspectives and interests and therefore different expectations. Not all of these expectations are either compatible or easy to measure. While it may be possible, for example, to keep track of median or average disposition times for particular classes of cases, it may be much more difficult to measure whether a new system increases or decreases the overall costs of litigation to the parties. Similarly, the “success” rates of ADR are notoriously difficult to measure.


Nevertheless, the inherent limitations of empirical research do not provide a reason for avoiding evaluation of case management. On the contrary, the Federal Court’s experience reinforces the importance of ensuring that procedural reforms are accompanied by a strategy for independent evaluation of the extent to which they achieve their objectives.[94] Indeed, where a court is responsible for introducing case management or other procedural initiatives, it should ensure that mechanisms are in place to enable the innovations to be independently evaluated. Further, the evaluation process, if it is to be useful, must be continuous and informed by empirical evidence. [95]


Fourthly, just as self-governance has transformed the institutional responsibilities of courts, so case management has transformed the role of individual judges. If case management is to achieve its objectives, the role of the judge is no longer limited to deciding cases in accordance with law. Depending upon the particular form of case management, the judge (and his or her staff) must keep track of matters and monitor compliance (or non-compliance) with directions. He or she must consider what directions are most likely to identify the issues truly in dispute yet avoid costly and potentially destructive interlocutory disputes. The judge must be alert to the possibility of settlements or to referral to ADR. In complex cases, careful thought must be given to the manner in which the hearing is to be conducted. This may involve directions on issues ranging from the form in which expert evidence is to be taken to the use of the technology to allow a “paperless” trial or appeal to be conducted. In short, the judge’s functions in a case management system now include a role as the manager of litigation.


Accountability
Consumer Oriented Approach
Running in parallel with self-governance and case management is what the Access to Justice Advisory Committee (“AJAC”) described in 1994 as a more “consumer-oriented” approach by the courts.[96] This approach reflects the principle that the courts should be more responsive to the needs and expectations of people who come in contact with the legal system, including those with special needs such as child carers and non-English speaking persons. It implies that courts can no longer focus exclusively on the convenience of judges, court staff and lawyers, but have to take into account the interests of the parties, witnesses, jurors and their family members.[97]


AJAC noted that some courts had begun to publish performance standards and information showing the extent to which the standards had been met. Encouraged by the example of the Courts Charter for England and Wales,[98] AJAC proposed that each federal court and tribunal should develop and implement a charter specifying standards of service to be provided to members of the public coming into contact with that court or tribunal. The charter was to address, among other things, timeliness and efficiency in the delivery of services including the delivery of judgments.[99]


Since AJAC reported, Professor Parker has confirmed that “all court systems in Australia are moving in the direction of consumer-orientation and a culture of service”.[100] He points out, however, that the process is not uniform because Australia does not have a court system, but what he fairly describes as “multiple hives of largely unco-ordinated activity”.[101] Professor Parker also criticises the absence of a “culture of subsequent evaluation” to match the incipient culture of continuous improvement”.[102]


The trends identified by Professor Parker have continued apace.[103] Courts at all levels have published charters or have committed themselves to performance standards. The standards relate not only to the administrative services provided by court staff, but include standards of timeliness in relation to individual cases (for example, specifying the time within which judgments should ordinarily be delivered) and to the court’s overall caseload. Courts are now making themselves more accountable to the public by formulating standards and reporting on the extent to which they have met those standards.


The sting in the tail of the principle of consumer orientation is that performance standards imply that the work of the courts is capable of being measured and therefore compared. Moreover, an inability to meet published standards may imply institutional failure and expose courts to public criticism. It is here, as I have pointed out elsewhere,[104] that a conflict has emerged between some courts and judges on the one hand, and what Chief Justice Spigelman describes as the “new public management” on the other.[105] He suggests that:[106]


“[p]erhaps the most definitive characteristic of the ‘new public management’ is the greater salience that is given to what has been called the ‘three Es’ – economy, efficiency, and effectiveness – in competition with other values of government activity such as accessibility, openness, fairness, impartiality, legitimacy, participation, honesty and rationality”.


The argument is that the reliance by the new public management on quantitative measurement carries with it the danger of concentrating on measurable “outputs” to the exclusion of outcomes that involve questions of judgment and degree. Chief Justice Spigelman cites New Zealand commentators[107] to support the view that concentration on outputs gives an inappropriate significance to considerations of efficiency over those of effectiveness.


The debate has centred on the annual Report on Government Services prepared by the Steering Committee for the Review of Commonwealth/State Service Provision, for which the Productivity Commission acts as the Secretariat.[108]Critics have suggested that the work of the Steering Committee is neither effective nor credible, because it compares the performance of courts which have differing jurisdictions, funding frameworks and governance arrangements.[109] They argue that if simplistic measurements are used to compare the performance of different courts, the results will be meaningless at best and seriously misleading at worst. In particular, if resources are linked to measurable outputs, core judicial functions may be threatened.


Many of these criticisms have force. But they should not be taken too far, particularly as the courts in Australia have done little to improve the quality of the statistical information they publish or to coordinate their efforts to collect comparable statistics in order to identify best practice.[110] If the courts themselves present information that is not coordinated or comparable they are not well placed to complain of inappropriate use of quantitative benchmarks by government agencies. Moreover, it is hardly realistic to expect governments not to display an interest in court efficiency when, according to the Productivity Commission, total recurrent expenditure by court authorities in Australia exceeds $1 billion and the courts themselves have adopted performance standards.[111]


A more constructive approach would be for the courts, instead of resisting reliance on benchmarks or performance standards, to improve the quality of data available as to the workings of the justice system. There is reason to think that such an approach would yield results. The Productivity Commission, for example, recognises that “[c]are needs to be taken when comparing timeliness data across jurisdictions because both the complexity and distribution of cases may vary” [112]. It also acknowledges that the collection of data is a process of


“continual improvement and refinement with the long-term aim of ensuring a national data collection that covers court activities across... jurisdictions in a timely and comparable way”.[113]


Judicial commentators are right to warn of the inappropriate use, particularly by the Executive, of quantitative performance measures. But such measures, if carefully compiled and presented, can be used to make valid comparisons of performance between courts and over time. Unless the courts actively participate in the process, the danger is that less sympathetic and less knowledgeable agencies will control the debate.


Complaints
The issue of complaints against judicial officers has been the subject of discussion over a long period in Australia.[114] The topic of complaints of judicial misconduct has recently resurfaced as an important political question. In part, this is because of proposals put forward by federal and State inquiries, notably by the ALRC[115] and the Crown Counsel of Victoria.[116] The issue has also gained political urgency in relation to the federal judiciary, ironically enough, because of widely reported but baseless allegations made in March 2002 against Justice Kirby of the High Court by a Senator acting under Parliamentary privilege.[117] The political lesson that has been learned is apparently not that elected representatives should not use Parliament to make baseless attacks on judges, but that a protocol should be developed to govern the receipt and investigation of complaints of serious misconduct against federal judges and magistrates.


The fundamental dilemma facing any system dealing with complaints of judicial misconduct is to reconcile the independence and impartiality of the judiciary with the increasing pressures for courts “to operate with a greater degree of efficiency, transparency and accountability”.[118] As Chief Justice Gleeson has pointed out, it is a source of frustration to many people that the Commonwealth Constitution[119] makes no provision for disciplining judges short of removal.[120] Thus


“unless a judge does something so serious as to warrant removal following parliamentary resolution, there is generally no capacity in any person or authority to suspend, or fine, or otherwise penalise for misconduct. It is often wrongly assumed that, beyond their capacity to advise, warn, and take appropriate administrative steps, Chief Justices, and other heads of jurisdiction, have authority to penalise other judges. Judicial independence means, amongst other things, that judges are independent of each other. Judges enjoy what is, by most workplace standards, extraordinary personal independence and freedom from interference by their leadership. This is in aid of one thing: reinforcing the public’s confidence that they will exercise their judicial power without fear or favour, and without the prospect of being subjected to pressure, direct or indirect, from any authority by the law itself.”[121]


Another aspect of the dilemma is to define precisely what constitutes “proved misbehaviour or incapacity” for the purposes of s 72(ii) of the Constitution, or similar provisions in State constitutions.[122] While the overall history of the Australian judiciary has been described as “tranquil and satisfactory”,[123] there have nonetheless been opportunities for ad hoc bodies to express views as to the nature of behaviour that would warrant removal of a judge. In particular, the 1986 Parliamentary Commission of Inquiry to examine the allegations against Justice Murphy of the High Court[124] and the 1989 report of the inquiry into the conduct of Mr Justice Vasta of the Supreme Court of Queensland have provided the occasions for consideration of the question.[125] The prevailing opinion appears to be that misbehaviour extends beyond the conduct of a judge in the execution of his or her judicial office, if that conduct is sufficiently serious to destroy public confidence in his or her ability to perform the functions of judicial office. On one view, the meaning of “proved incapacity” is a matter entrusted to the judgment of Parliament in a given case and therefore has no legal limits.[126] The very vagueness of the formulations has added to the difficulty of developing satisfactory procedures to deal with complaints of misconduct, since it is far from clear when alleged misconduct, if established, is sufficiently serious to warrant removal by Parliament.


The ALRC initially proposed that the Commonwealth should establish an independent judicial commission modelled on the Judicial Commission of New South Wales,[127] to receive and investigate complaints against federal judges and magistrates. Under this model,[128] the Commission receives all complaints and conducts a preliminary investigation of each complaint in private. Following the preliminary examination, the complaint is either summarily dismissed or classified as a “minor” or “serious” complaint. Summary dismissal occurs if, for example, the complaint is frivolous, the subject-matter of the complaint is trivial, there is another satisfactory means of redress (such as a right of appeal) or further consideration of the complaint is “unnecessary or unjustifiable”.


A serious complaint is one which if substantiated could justify consideration of the removal of the judicial officer from office. A serious complaint, if not summarily dismissed, must be referred to the Conduct Division, consisting of three judicial officers (one of whom may be a retired judicial officer). The Conduct Division may hold hearings which are ordinarily conducted in public. If the Conduct Division finds that a serious complaint is substantiated, it presents a report to the Governor which the Minister must table in Parliament.[129] The Judicial Commission itself does not discipline judicial officers.


A complaint classified as minor may be referred either to the Conduct Division or to the relevant head of jurisdiction. If the Conduct Division decides that a minor complaint is substantiated, it either informs the judicial officer or decides that no action need be taken. The legislation does not address what powers or responsibilities, if any, the head of jurisdiction has in respect of a minor complaint referred by the Commission.


According to the Judicial Commission, the most common grounds of complaint concern alleged failures to give a fair hearing and apprehension of bias, the complainants often being unrepresented litigants.[130] Perhaps not surprisingly, the vast majority of complaints are summarily dismissed. In the 2001-2002 year, of the 107 complaints finalised, 96 were summarily dismissed, while nine minor complaints were “disposed of”. One serious complaint was disposed of and another was withdrawn.[131]


The ALRC retreated from its proposal for an independent federal judicial commission because it was persuaded that it presented constitutional difficulties. In particular, ALRC accepted that insufficient weight had been given to the constitutional obstacles to a judicial commission taking action in respect of conduct not of itself warranting removal of a judge.[132] Accordingly, the ALRC proposed that federal courts should build on their work in developing court charters to prepare their own protocols for defining, receiving and handling bona fide complaints against judges.[133] To deal with the “very rare” matters raising serious issues about misbehaviour or incapacity the ALRC proposed that federal Parliament establish a protocol governing the receipt and investigation of serious complaints. It suggested that the protocol provide for a standing committee, perhaps drawn from a panel of retired judges, to investigate the complaint and prepare a report for Parliament.[134]


The one thing that seems clear in Australia is that, despite the constitutional difficulties, a formal standing mechanism will be required to address complaints of judicial misconduct. The catchcry of judicial independence is unlikely to repel calls for such a mechanism to be introduced. The fact that, almost certainly, the vast majority of complaints against judicial officers will be groundless is not a basis for resisting the calls. On the contrary, the likelihood that most complaints will be unfounded reinforces the need for an effective and accountable system to assess and dispose of them.


There is an argument that Parliament should, perhaps through a standing committee, receive and investigate complaints concerning judicial misconduct. But involving Parliament too early in the process creates significant dangers for judicial independence. If, for example, a Parliamentary committee is charged with the responsibility for receiving and processing complaints, there is a serious risk that members of the committee will exercise inappropriate power over judicial officers for whom the very fact that a complaint is to be investigated may have devastating consequences. Similarly, the involvement of members of such a committee in evaluating complaints, even for the purpose of referral to another body, may compromise those members in the unlikely event that the matter came before Parliament on a motion to dismiss the judicial officer. Even a system that confers discretionary authority on the Attorney-General to refer complaints for investigation potentially gives the minister great power over individual judicial officers. Particularly is this so when the Attorney-General has largely abandoned the traditional role as defender of the courts on the ground that it is incompatible with the political nature of the office.[135] In retrospect, it is perhaps a pity that the ALRC considered the constitutional obstacles to a federal judicial commission too formidable to overcome.


Conclusion
The experience over the past two decades or so in Australia is suggestive of an apparent paradox. On the one hand, the most influential independent inquiries, although pointing to areas where significant improvements can be made, have concluded that the judicial system is fundamentally sound. This diagnosis of reasonable, if not perfect, health has coincided with the High Court’s stringent insistence on protecting the integrity of the judicial function and its concomitant sensitivity to any challenge to judicial independence. These developments confirm that courts continue to resolve disputes impartially in accordance with law and that they do so by means of what is usually, although incompletely, described as the adversary system.


Yet at the same time, there has been a profound change in the functions discharged by courts and by individual judges. The principal developments referred to in this paper – judicial self-governance, case management and consumer-orientation – have transformed the way courts and judges perform what can be described as the core judicial functions. Courts have become managers both of resources and of the litigious process itself. In consequence, they have become initiators of change rather than passive targets for reform for critics and for reform proposals formulated by other agencies. They have also become more accountable for their own managerial performance, both to governments and to the community at large.


I have referred to the paradox as “apparent”. The reason for doing so is that the developments described in this paper are compatible with judicial independence and with the maintenance of public confidence in the judiciary (in the sense of community acceptance of judicial decision-making even in areas of high controversy). Indeed, the emergence of a managerial and more accountable judiciary has strengthened the capacity of the courts to maintain the rule of law. By identifying and addressing, even if imperfectly, issues which, if unresolved, might well threaten public confidence in the judiciary, the courts have shown a capacity for adaptation that has few historical counterparts.


I do not wish to overstate the position. I do not suggest that the courts have successfully met all challenges that they face, nor that they are immune from future threats to their independence and standing. The judicial system is by no means isolated from the volatility that characterises the modern political process in liberal democratic societies. Nor do I suggest that the new managerial role is easy for courts or judges to discharge.


The crucial point is that, generally speaking, courts are now committed to understanding and responding to the forces that influence their work. Those forces include the expectations of the community, even if those expectations sometimes appear to judicial officers to be ill-informed and unduly demanding. This new role is not always comfortable or risk-free. But the willingness of the courts to accept additional responsibilities enhances the prospects that the rule of law will be preserved in increasingly difficult and hazardous times.


[1] Law Commission, Striking the Balance (Preliminary Paper 51, April 2002).

[2] Law Commission, Seeking Solutions: Options for Change to the New Zealand Court System (Preliminary Paper 52, December 2002) (“Seeking Solutions”).

[3] Chen Palmer & Partners, Report on Judicial Administration Issues (report to the Attorney-General, November 2002) (“Palmer Report”).

[4] Supreme Court Bill 2002 (NZ), at the time of writing before the Justice and Electoral Select Committee of the New Zealand Parliament. See Report of the Advisory Group, Replacing the Privy Council: A New Supreme Court (Report to the Attorney-General, April 2002).

[5] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 (a citizen of the United Kingdom is a citizen of a “foreign power” for the purposes of s 44(i) of the Constitution). But compare Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (long term residents who are non-naturalised British subjects, even badly behaved ones, are not “aliens” under Australian law).
[6] Lord Woolf, Access to Justice: Final Report (HMSO, 1996), 14.
[7] Id, 2.

[8] See, for example, Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994); Western Australia Law Reform Commission Review of the Criminal and Civil Justice System: Final Report (1999).

[9] The first is entitled, in the spirit of the corporate age, “Managing Justice: A Review of the Federal Civil Justice System” (Report 89, 2000) (“Managing Justice”). The second has a more sober title: “The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation” (Report 92, 2001). Managing Justice contains a bibliography of recent civil justice research in Australia: par l.77.

[10] See R Sackville, “Reforming the Civil Justice System: The Case for a Considered Approach” in H Stacy and M Lavarch (eds), Beyond the Adversarial System (1999), 34, 38-39 (referred to as “Reforming the Civil Justice System”).
[11] Lord Woolf, Access to Justice: Interim Report (HMSO, 1995), 18.
[12] Seeking Solutions, Part 1.

[13] J Hansen, “Case Management in New Zealand Courts” [1998] OtaLawRw 9; (1998) 9 Otago L Rev 319 (referring to demands to “control the chaos in the courts”).

[14] Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337, 343. See, too, New Zealand Bill of Rights Act 1990 (NZ), s 25.
[15] A M Gleeson, “Public Confidence in the Judiciary” (2002) 76 ALJ 558.

[16] A Barak, “Foreword: A Judge on Judging: The Role of the Supreme Court in a Democracy” (2002) 116 Harv L Rev 19, 60.
[17] Austin v Commonwealth (2003) 195 ALR 321.

[18] Sydney Morning Herald, 8 February 2003, 34. The Australian preferred to attack the plaintiffs, suggesting that

“Judges are a superior class of lawyer, and it is never wise to stand between them and a bucket of money”.

Australian, 7 February 2003, 12.
[19] Reforming the Civil Justice System, 43.
[20] Managing Justice, par 1.112.

[21] For a recent analysis of “information asymmetry” and countervailing forces in the market for legal services see JJ Spigelman, “Are Lawyers Lemons? Competition Principles and Professional Regulation” (2003) 77 ALJ 44.
[22] Managing Justice, par 1.51.
[23] Id, par 1.53.
[24] Id, pars 1.111 ff.

[25] I Barker and B A Beaumont, “Trans-Tasman Legal Relations – Some Recent and Future Developments” (1992) 66 ALJ 566.

[26] New Zealand Bill of Rights Act 1990 (NZ).

[27] Although they sometimes come close: R v Pora [2000] NZCA 403; [2001] 2 NZLR 37; cf Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, at 17. See generally J Potter and R Ekins, “The New Zealand Bill of Rights Act 1990: A Judicial Perspective” (2002) 12 JJA 85.
[28] Re Wakim; Ex parte McNally (1999) 198 CLR 511.

[29] The three federal courts are the Federal Court, the Family Court and the Federal Magistrates Service: Federal Court of Australia Act 1976 (Cth), s 5; Family Law Act 1975 (Cth), s 21; Federal Magistrates Act 1999 (Cth), s 8.

[30] Constitution, s 72. Prior to a constitutional amendment in 1977, federal Judges in Australia, like their federal counterparts in the United States, were appointed for life.

[31] As in the case of the now superseded Employment Tribunal, held to be an inferior court in Attorney-General v Reid [2000] NZHC 1301; [2000] 2 NZLR 377. See also Claydon v Attorney-General [2002] 1 NZLR 130.
[32] A practice regarded as unsatisfactory by the Palmer Report, par 135.

[33] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 (“Boilermakers’ Case”); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

[34] See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1, limiting the extra-judicial roles that may be performed by federal judges at the request of the Executive.

[35] In the extremely important decision in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 195 ALR 24, the High Court gave a very narrow reading to the so-called “privative clause” contained in s 474(1) of the Migration Act 1958 (Cth). The joint judgment emphasised the “fundamental constitutional proposition” that the Parliament cannot confer on a non-judicial body (the Refugee Review Tribunal) the power to conclusively determine the limits of its own jurisdiction: [2003] HCA 2; 195 ALR 24, 50.

[36] See J Resnik, “Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III” (2000) 113 Harv L Rev 925, 983 ff. In Australia, federal magistrates have the status of judges appointed pursuant to Chapter III of the Constitution.

[37] Pursuant to s 77(iii) of the Constitution. This is the so-called “autochthonous expedient”: Boilermakers’ Case [1956] HCA 10; (1956) 94 CLR 254, 268.
[38] Federated Sawmill etc Association v Alexander [1912] HCA 42; (1912) 15 CLR 308, 313.
[39] Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, 61.
[40] R v Spicer; Ex parte Australian Builders’ Labourers’ Federation [1957] HCA 81; (1957) 100 CLR 277.
[41] See M D Kirby, “Acting Judges – A Non-theoretical Danger” (1998) 8 JJA 69.
[42] [1996] HCA 24; (1996) 189 CLR 51.
[43] Id, 121, per McHugh J; 106, per Gaudron J.
[44] L Zines, Cowen and Zines’s Federal Jurisdiction in Australia (3rd ed 2002), 243.

[45] It has been said that State legislation must have “a quite exceptional character to contravene the constitutional protection of the judicial process”: R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 272, per Spigelman CJ. In Whyte the New South Wales Court of Criminal Appeal upheld the validity of sentencing guideline judgments against an attack on Kable “repugnancy” grounds.

[46] In Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, a challenge was made to a murder conviction in the Supreme Court of the Australian Capital Territory on the ground that the presiding Judge was an acting Judge. However, the challenge failed because of the special position of a Territory court under the Constitution.

[47] See, for example, Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.

[48] See generally T W Church and P A Sallmann, Governing Australia’s Courts (AIJA, 1991); R Sackville, “The Access to Justice Report: Change and Accountability in the Justice System” (1994) 4 JJA 65, 72-74.
[49] High Court of Australia Act 1979 (Cth).

[50] Courts and Tribunals Administration Amendment Act 1989 (Cth), effective from 1 January 1990.

[51] Cth Parl Deb, HR, 1 November 1989, 2265, cited by B Beaumont, “The Self-administering Court: From Principles to Pragmatism” (1999) 9 JJA 61, 63.

[52] See Federal Court of Australia Act 1976 (Cth), s 18A(1); Family Law Act 1975 (Cth), s 21B(1).

[53] Professor Sallmann, writing in 1998, identified five broad models of governance with which Australian jurisdictions have experimented. Two of these (the “traditional” and “separate department” models) involve departments providing services to the judiciary: P A Sallmann, “Courts’ Governance: Whither Queensland?” (1998) 8 JJA 23, 26.

[54] States Courts Administration Act 1993 (SA); see R Sackville, note 48 above, 72; L King, “A Judiciary-based State Courts Administration: The South Australian Experience” (1994) 3 JJA 133.

[55] P A Sallman and R J Wright, Going to Court: A Discussion Paper on Civil Justice in Victoria (Department of Justice, 2000), 53.
[56] T W Church and P A Sallmann, “Governing Australia’s Courts” (AIJA, 1991), 12.

[57] Most notably, an acrimonious dispute in 1905 relating to travelling expenses: M Coper, Encounters with the Australian Constitution (CCH, 1988), 128-129.

[58] T Eichelbaum, “Key Issues in Australian and New Zealand Judicial Administration” (1996) 6 JJA 147, 149. Eichelbaum CJ says that there was “turmoil” when this system replaced administration by a “law-centred executive department” but does not provide details.
[59] J Resnik, note 36 above, 1011.

[60] See, for example, L J King, “Minimum Standards of Judicial Independence” (1984) 58 ALJ 340.

[61] A F Mason, “Courts and their Relationship with Government” (1988), cited in B Beaumont, note 51 above, 62-63.
[62] Federal Court of Australia, 2001-2002 Annual Report, App 1.
[63] Id, 8.

[64] In Australia, particularly in the Eastern states, specialist advocates usually practise as barristers. Since barristers are sole practitioners they often have little occasion to develop administrative skills.

[65] The Chief Justice of the Supreme Court of South Australia, Doyle CJ, has appeared in person before a committee of the South Australian Parliament.
[66] Managing Justice, par 1.14.

[67] R Sackville, “From Access to Justice to Managing Justice: The Transformation of the Judicial Role” (2002) 12 JJA 5, 13-14, referring to Supreme Court of New South Wales, Practice Note 120; County Court of Victoria, 3 Year Strategic Plan 2001-2004; District Court of New South Wales, Strategic Plan.
[68] See Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, where it was held (155) that

“[c]ase management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration [in determining whether to grant leave to amend]. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence.”

Compare the earlier decision of a differently constituted court in Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625.

[69] Case management, following pilot schemes in the High Court and District Court, has been implemented nationally in New Zealand: see Seeking Solutions, 133.

[70] M Solomon and D K Somerlot, Caseflow Management in the Trial Court: Now and for the Future (ABA, 1987), 5. As to Professor Solomon’s role in the introduction of case management in New Zealand: see J Hansen, note 13 above, 326.

[71] P A Sallmann and R J Wright, note 55 above, 70-71, citing American Bar Association Judicial Administration Division, Standards Relating to Trial Courts (1992).

[72] R Sackville, “Case Management: A Consideration of the Australian Experience” in Working Group on a Courts Commission, Conference on Case Management (1997) (“Case Management: the Australian Experience”) (1997), 165.

[73] J R T Wood, “Case Management in the Common Law Division of the Supreme Court of New South Wales” (1991) 1 JJA 71.

[74] Although legislation now sometimes requires courts to engage in case management: see, for example, Crimes (Criminal Trials) Act 1999 (Vic), Parts 2, 3.
[75] Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388, 395.

[76] Compare Seeking Solutions, 135, suggesting that case management in New Zealand has not worked well in practice because judges have not applied it sufficiently vigorously.
[77] I Scott, “Is Court Control the Key to Reduction in Delays?” (1983) 57 ALJ 16, 18.
[78] New State Ice Co v Liebmann 285 US 262, 310-311 (1932).
[79] This paragraph is based on Case Management: the Australian Experience, note 72 above, 172.

[80] See, for example, Federal Court of Australia Act 1976 (Cth), s 53A. Curious as it may seem, parties can be compelled to attend mediation (although they cannot be compelled to be reasonable: s 53A(1A)).
[81] Managing Justice, pars 8.201, 8.233; Ch 8, passim.

[82] C Sage, T Wright and C Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law & Justice Foundation of New South Wales, 2002), 10; see also F McRae and D Ruschena, “Trial Date Certainty: the Adoption of the Individual Docket System within the Victorian Federal Court Registry” (2000) 9 JJA 201. The Wellington and Christchurch High Court registries function under an “individual list” system which appears to correspond broadly to the IDS: Seeking Solutions, 134.
[83] Id, 12. The information was derived from the Federal Court of Australia website.
[84] Allocations within specialist panels are also on a random basis.
[85] Managing Justice, par 7.6.
[86] Id, par 7.7.
[87] Id, pars 7.13, 7.21.
[88] C Sage, T Wright and C Morris, note 82 above.

[89] See J S Kakalik, T Dunworth, L A Hill, D McCaffrey, M Oshiro, N M Pace and E Vaiana, Just, Speedy, and Inexpensive? An Evaluation of Judicial Case Management under the Civil Justice Reform Act (1996).
[90] C Sage, T Wright and C Morris, note 82 above, 1.
[91] Id, 171-172.
[92] Id, 172.

[93] Id, 170. That not all practitioners are enamoured of case management, including the IDS, is demonstrated by the lament of G Gibson, “Judicial Overservicing: Bringing Home the Bacon” Victorian Bar News (Summer 2001), 46.
[94] R Sackville, note 67 above, 15.

[95] The New Zealand High Court Case Management Civil Pilot has been the subject of an evaluation report: K Saville-Smith and others, High Court Civil Case Flow Pilot: An Evaluation of its Impact in Auckland and Napier (1995). For a summary, see M von Dadelszen, “Caseflow Management – In Search of the ‘Meaningful Event’” (1996) 6 JJA 171, 173-174.

[96] Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994) (“Access to Justice”), par 1.22. The expression was borrowed from P A Sallmann, “Towards a More Consumer-Oriented Court System” (1993) 3 JJA 47.
[97] See, generally, Access to Justice, ch 15.
[98] The Lord Chancellor’s Department, The Courts Charter (HMSO 1992).
[99] Access to Justice, Action 15.1.
[100] S Parker, Courts and the Public (AIJA, 1998), 159.
[101] Id, 160.
[102] Ibid.
[103] For an overview, see R Sackville, note 67 above, 16-17.
[104] Id, 17.
[105] J J Spigelman, “The ‘New Public Management’ and the Courts” (2001) 75 ALJ 748.
[106] Id, 748.

[107] C Pollitt and G Bouckaert, Public Management Reform: A Comparative Analysis (Oxford UP, 2000), 167.

[108] The latest is the Report on Government Services 2003. Volume 1, Chapter 6 deals with “Court Administration”.

[109] A Nicholson, “In Response to ‘Towards a More Compliant Judiciary?’” (2002) 76 ALJ 231, 234.

[110] See S Parker, note 100 above, 167 (Accommodation 14); J Doyle and C Jacobi, “Judicial Independence and Public Sector Accountability” (2002) 11 JJA 168, 172.
[111] Report on Government Services 2003, 6.10, Table 6.1.
[112] Id, Table 6.11
[113] Id, 6.28, 6.31.

[114] See, for example, Constitutional Commission, Final Report of the Constitutional Commission (AGPS 1988), vol 1, 402-403; E Campbell and H P Lee, The Australian Judiciary (2001), Ch 5; A R Blackshield, “The Appointment and Removal of Federal Judges” in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System (2000), 400 ff.
[115] Managing Justice, pars 2.243 ff.

[116] P A Sallmann, The Judicial Conduct and Complaints System in Victoria: A Discussion Paper (2002).

[117] The background is set out in a statement by the Judicial Conference of Australia on the affair: (2002) 76 ALJ 278.
[118] Managing Justice, par 2.250.

[119] And the State Constitutions, although the procedures for removal of judges vary among the States: see P H Lane, “Constitutional Aspects of Judicial Independence” in H Cunningham (ed), Fragile Bastion: Judicial Independence in the Nineties and Beyond (1997), 54 ff.

[120] A M Gleeson, note 15 above, 562. See, too, Re Colina; Ex Parte Torney (1999) 200 CLR 386, 398, per Gleeson CJ and Gummow J.
[121] A M Gleeson, note 15 above, 563.

[122] The Constitution Act 1902 (NSW), s 53(2), for example, uses the same expression as the ground for removal of the “holder of a judicial office”.
[123] P A Sallmann, note 116 above, 8.

[124] Parliamentary Commission of Inquiry, Special Report Dealing with the Meaning of Misbehaviour for the Purposes of Section 72 of the Constitution (Parl Paper No 443/1986). For a summary of the convoluted history of the “The Murphy Affair”, see A R Blackshield, note 114 above, 410-420.

[125] First Report of the Parliamentary Judges Commission of Inquiry (1989), 9-10. Mr Justice Vasta is the only Australian judge to have been removed from office by a vote of a Parliament: Campbell and Lee, note 113 above, 105-106.
[126] A R Blackshield, note 114 above, 422.

[127] The Judicial Commission is an independent statutory body created by the Judicial Officers Act 1986 (NSW), s 5(1). The President of the Commission is the Chief Justice of New South Wales. The Commission consists of six official members, being the heads of jurisdiction in New South Wales, and four appointed members.

[128] Judicial Officers Act 1986 (NSW), Part 6. The following account is derived from the legislation.

[129] This was the procedure adopted with respect to complaints against Justice Bruce of the Supreme Court of New South Wales concerning serious delays in the delivery of judgments: see Bruce v Cole [1998] NSWCA 45; (1998) 45 NSWLR 163. The New South Wales Legislative Council voted not to remove Justice Bruce, but he resigned eight months later: Campbell and Lee note 114 above, 106-108.
[130] Judicial Commission of New South Wales, Annual Report 2001-2002, 23.
[131] Id, 20.

[132] Managing Justice, 2.266-2.272. The same difficulties would seem to apply to the Judicial Complaints Lay Observer system in New Zealand, which permits the Observer to advise the Head of Court to reconsider a complaint found by the Head of Court to be without substance. Since neither the Observer nor the Head of Court could exercise authority over an individual judge, the system could operate in Australia only with the consent of the judge concerned. Indeed, that seems to be the position in New Zealand: see Palmer Report, pars 114-115, 122, App 4.
[133] Id, Recommendation 11.

[134] Id, Recommendation 12. Professor Sallmann’s proposals for Victoria are similar: P A Sallmann, note 116 above, 39-40.

[135] This is the position adopted by the current Australian Attorney-General: see D Williams, “The Role of the Attorney-General” (2002) 13 Pub L Rev 252, 261-262.


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