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Moore, Justice Michael --- "Judicial independence - Breaking free from the Executive Branch" (FCA) [2010] FedJSchol 27

Speeches

19th Pacific Regional Judicial Conference
Tumon, Guam
7-10 November 2010

Judicial independence - Breaking free from the Executive Branch

Hon Justice Michael F Moore


Introduction

The cross examination of the then Premier of the State of Queensland in 1988 during a Royal Commission into police and political corruption[2] revealed the following of the knowledge of the leader of the State about the doctrine of the separation of powers:

Michael Forde: What do you understand by the doctrine of the separation of powers under the Westminster system?

Sir Joh Bjelke Petersen: The Westminster system? The stock?

Forde: The doctrine of the separation of powers under the Westminster system?

Bjelke Petersen: No, I don't quite know what you're driving at. The document?

Forde: No, I'll say it again. What do you understand by the doctrine of the separation of powers under the Westminster system?

Bjelke Petersen: I don't know which doctrine you refer to.

Forde: There is only one doctrine of the separation of powers.

Bjelke Petersen: I believe in it very strongly, and despite what you may say, I believe that we do have a great responsibility to the people who elect us to government. And that's to maintain their freedom and their rights, and I did that – sought to do it – always.

Forde: I'm sure you're trying to be responsive to the question, but the question related to the doctrine of the separation of powers or the principles.

Bjelke Petersen: Between the Government and the – Is it?

Forde: No, you tell me what you understand.

Bjelke Petersen: Well, the separation of the doctrine that you refer to, in relation to where the Government stands, and the rest of the community stands, or where the rest of the instruments of Government stand. Is that what-?

Forde: No

Bjelke Petersen: Well, you tell me. And I'll tell you whether you're right or not. Don't you know?[3]

I do not suggest the Premier's apparently limited understanding of the doctrine was typical of political leaders then or now. However the cross examination illustrates that we cannot assume political leaders understand the doctrine (or, charitably, are familiar with the way it is commonly described and discussed) let alone seek to ensure its effective operation.

In this paper I address firstly the doctrine in a summary way and then move to discuss practical ways in which courts can be immunised, so far as possible, through administrative structures from an executive or even a parliament not completely committed to adherence to the doctrine. The paper draws essentially on the Australian experience. I need to add the qualification that some of the commentary may be dated as administrative structures for Australian Courts do change and may have recently changed in ways of which I am not aware. In a sense, however, this does not matter. That is because problems which have been identified in relation to a particular model of administration which may have been superseded are most likely be a problem in relation to that model if existing elsewhere in the Asia-Pacific region or if proposed to be introduced in the region.

The doctrine of the separation of powers

The doctrine of the separation of powers has traditionally been perceived as a safeguard of liberty within a society operating under the rule of law.[4] The doctrine advocates that the three arms of government, being the executive, legislative and judicial arms, should be separate and that their respective functions and powers should be mutually exclusive.[5] This creates an institutional design that prevents the concentration of too much power in and consequent abuse of power by a single arm of government.[6] The premise underlying the separation of powers doctrine "is not a harmonious relationship but a checking and balancing of power"[7], ensuring that no one governmental arm unduly harms the interests of the governed.[8]

There are many reasons why theorists support the doctrine of the separation of powers, particularly the separation of judicial power from the legislative and executive powers, as being an important precept in the Australian system of government. The doctrine is said to protect minority interests far better than a system that is purely reliant on representative democracy. One commentator has suggested this is because “the people and politicians cannot be trusted, even where democratic majorities exist, to respect the rights of minorities and individuals because of their basic self-interest.”[9]

The doctrine of the separation of powers is entrenched in the as it has been interpreted by our constitutional court, the High Court. In a number of recent cases, the High Court has resisted attempts by parliaments to both limit the judiciary's review function[10] and encroach on the judiciary's adjudicative function.[11] Justice McHugh of the High Court has said extra-curially that "[d]espite its inefficiencies and tensions, the distinction between the judicial and the executive powers of government in particular continues to be jealously guarded in the federal sphere and operates in 'full vigour'"[12]. His Honour cited the emphasis placed on the importance of the separation of powers by the Privy Council in the Boilermakers Case, when it was said that "in a Federal system, the absolute independence of the Judiciary is the bulwark of the Constitution against encroachment whether by the Legislature or by the Executive."[13]

It is unnecessary in this paper to examine the development of the doctrine of the separation of powers. However its development serves to illustrate that the emergence of the doctrine was the manifestation of genuine and real political pressures experienced in countries which are now mature democracies. It also serves to remind us that in countries where, now, democracy is more fragile and more recent in origin the existence of the doctrine and its recognition into the future cannot be taken for granted.

The acceptance of the doctrine by all arms of government, at least at a theoretical level, does not produce a judiciary sufficiently robust to exercise the power of which it is the repository. The judiciary's capacity to exercise power in a real and effective way depends, in significant measure, on having the resources to do so and, I would suggest, a capacity to deploy those resources in a flexible and efficient way. Accordingly, I now turn from the theoretical to the practical, illustrated by the various institutional arrangements for the administration and resourcing of courts in Australia.

The Institutional Arrangements - resourcing of the courts

One of the threats to judicial independence identified in the Report of the Royal Commission in which the cross-examination set out at the beginning of this paper occurred, the Fitzgerald Inquiry in Queensland, was addressed in a section of the Inquiry's Report on Court Administration:[14]

The independence of the Judiciary is of paramount importance… One of the threats to judicial independence is an over-dependence upon administrative and financial resources from a Government department or being subject to administrative regulation in matters associated with the performance of the judicial role. Independence of the Judiciary bespeaks as much autonomy as is possible in the internal management of the administration of the courts.

Obviously the degree of autonomy is substantially determined by the way resources are provided and managed. This flows from the basic structural and operational relationships between the judicial and executive branches of government. At one time the operation and administration of the courts was left to officials of an executive department, responsible to a government Minister, usually the Attorney-General, however this has changed over the past 30 years with the judiciary in Australia accepting more responsibility for the "efficient, effective and impartial administration of justice and their courts."[15]

Chief Justice French of the High Court of Australia has recognised the "need for a distinctive policy framework governing the funding of courts, which respects the constitutional and functional boundary conditions"[16]. French CJ referred to the comments of Chief Justice Brennan who said in times of "financial stringency" there is a risk that governments might trim expenditure as they would other executive agencies and not allow "adequate funds and services for the performance of curial functions".[17]

Five models[18] of court governance are evident in Australian jurisdictions. They are:

1) the "traditional" model in which a justice department or attorney-general's department provides administrative services to the judiciary. The judiciary under this model has limited responsibility for the services and no formal power over them. This is the model operating in some Australian States.

2) The "separate department" model in which the administrative services to the judiciary are provided by a department specifically established for this role and the judiciary has limited responsibility or power over the administration.

3) The "federal model" in which the administration is controlled by each court.

4) The "autonomous collegiate" model, similar to the "federal model". This is the court governance of the High Court of Australia.

5) The "judicial autonomous" model in which a judicial governing council and separate courts administration authority together provide the services to the courts, such as in South Australia.

The traditional model

This model is still found in most Australian State court systems. It is commonly believed to be a model which renders judicial independence less secure and compromises the efficiency and effectiveness of the courts.[19] This is particularly so in relation to the allocation of money which is undertaken by public servants who may have totally different priorities to those of the judiciary. Judicial independence can be compromised by a lack of control over money, staff and infrastructures. The report of the Australian Institute of Judicial Administration (AIJA) on Australia's court governance indicated that the courts have "no direct input at the point where government as a whole determines the budget for each of its agencies and programs."[20] In "mega-departments" the judiciary are not dealing with the executive heads of department but with subordinates in the hierarchy. The court also lacks authority over the management of finances within programs once the funds have been allocated.[21] Judges may find that they do not have the funds they expect when the "financial goalposts" are moved by the public service departments altering the amounts allocated or shifting funds to another purpose.

(i) New South Wales

In New South Wales the Department of Justice and Attorney General[22] is responsible for administering the court system. NSW formed a separate department for the courts in 1991 and then abandoned the reform shortly afterwards, returning to a traditional, executive government approach.[23] The Department of Justice and Attorney General consists of a number of agencies[24], business units[25], the courts[26] and libraries. The overall responsibility for the management of the cases in the NSW Courts lies with the Chief Justice. The budget for the courts is submitted by the Executive to Parliament and is only part of the overall budget allocated to the Attorney General's Department. The decision about which initiatives will be funded is made by the Executive. The application of budget resources once allocated is made by the Executive and the Chief Justice with input by the Resources Committee.[27] The Attorney General's Department provides information technology support to the courts and an IT manager to Registry. The Supreme Court IT Committee oversees the development and use of IT in the Supreme Court, in chambers and in the courtrooms. The Chief Justice makes specific recommendations to the IT Committee, such as the request for separate email domain names to reflect the separation of constitutional powers.[28]

(ii) Victoria

Victoria retains the traditional model (see annexure 1A and 1B) but has made a couple of attempts, one by the judiciary and another by the Attorney General to reform the system of court governance. Justice T H Smith in analysing court governance and the executive model used the court governance in Victoria as a focus for his criticism of the traditional model which his Honour assessed as a "fundamentally flawed system".[29] The mega-department of the Victorian Department of Justice (DOJ) was referred to as the "DOJ Behemoth" with a Department Secretary who heads the Department and has to ensure it serves all Ministers. The courts themselves are a part of six portfolios[30] and at one stage were referred to as "Business unit 19." The Courts and Tribunals Unit is now a business unit of the Courts Portfolio within the Department of Justice which oversees the policy and legislative development, measures the court performance, analyses statistics and implements the Integrated Courts Management System.

According to Justice Smith, they are mere "entities within entities in partnership with other entities" and "indistinguishable from any other entities"[31] rather than as the third arm of government. This his Honour regards as a fundamental misunderstanding of the role of the courts when the courts are viewed as "partners" of entities such as the Victoria Police or Victoria Legal Aid and considers that it is understandable that department offices do not see the need to distinguish the courts as the third arm of government. The DOJ systems for human resources, budget and information technology have been applied to the courts. There is a centralisation of personnel management in government with the courts being subject to external constraints in managing their human resources. The personal staff of judges are employees of DOJ and their placement is determined by the Department. This Justice Smith views as a constant source of discontent and discussion between the DOJ and the courts. Also the court CEOs are employees of DOJ so that the position of CEO has to fit into the staffing structure of the Department.

One consequence of the mega-department model that Justice Smith viewed with concern was the operation of the IT system. The courts do not have their own stand-alone IT system administered by court staff. The whole of Department IT polices are set without prior consultation with the judges and are subject to purchasing guidelines not always appropriate for the courts. His Honour believed there was little understanding of the different needs of a prison officer, an administrative clerk or a judge. Justice Smith concluded that the need to protect the independence of the courts and the integrity of data has not been considered within the DOJ policies and guidelines and the courts have been regarded as "merely another entity with no special distinguishing features." [32] A solution has not yet been found to the problem of how to protect the IT system from external threats and viruses while also protecting the confidentiality of judicial data.[33]

The fundamental problem identified by Justice Smith with the model of court governance in Victoria is that "so long as the courts are a part of a mega-department, the executive culture will always be one in which the courts are seen as minor units and not the independent third arm of government."[34] His Honour suggested that the South Australian and federal models in Australia have been in operation for many years and appear to address the problems of the executive model and so should be "selected and downloaded" in Victoria.[35]

(iii) The Australian Capital Territory

The courts in the Australian Capital Territory[36] are administered by the ACT Department of Justice and Community Safety (JACS).[37] The ministerial responsibility for the activities of the Department is with the Attorney General and Minister for Police and Emergency Services. The current organisational structure (see annexure 2)[38]indicates a structure of nine business units including the Emergency Services Agency, Office of Regulatory Services, ACT Corrective Services and the ACT Law Courts and Tribunal.[39] Output, such as legal services to government and legislative drafting is measured against five strategic indicators. These are, Accessible Civil Justice System, Safe Community, Safe Community – Emergency Services, Effective Regulation and Enforcement and Promotion and Protection of Rights and Interest. The chart indicates that the activities of business units like the Courts and Tribunal impact on more than one outcome. The 2009-2010 Annual Report of JACS indicates that performance is measured against outcomes, outputs and performance.[40] What is not clear is whether the independence of the courts and the independence of the judiciary is viewed as of fundamental importance.

An analysis of the annual reports from 2002 to 2010 reveals a change in reference to the independence of the courts. In the Mission Statement, Organisational Profile and Content section of 2002-2003 Annual Report, "Maintenance of the integrity and independence of the courts" is listed as an outcome. The 2004-2005 Annual Report refers to the principle of "respect for the independence of the judiciary and statutory office holders." Since the 2005-2006 annual report any statements referring to the independence of the judiciary and maintenance of the integrity of the courts are strikingly absent. They appear to have been replaced by "outcomes, "outputs" and "performance information".

During the 2005-2006 year a significant review was conducted of the ACT Courts and Tribunals as a result of the Auditor General's September 2005 report on Courts Administration. The report on Courts Administration provided a detailed analysis of issues affecting the efficiency of ACT Courts. It recommended the establishment of a Courts Governance Committee to provide a collaborative environment for the judiciary, the Department and the Executive where courts administration issues could be presented and discussed.

The Chief Justice of the Supreme Court of the ACT, Higgins CJ, commented in October 2006[41] that the Courts Governance Committee would hopefully alleviate the conflicting accountability of the Courts Administrator and promote dialogue between the key figureheads, the Head of Department and the Head of Jurisdiction by providing a direct line of communication between the Judiciary and the Executive. His Honour identified a difficult problem in the previous model of administration in which the Courts Administrator was accountable to the Attorney-General, the Chief Executive of JACS, the Chief Justice and the Chief Magistrate. This conflict in accountability has been described as "inimical" to judicial independence.[42] Higgins CJ refers to the divergent approach of judges and administrators to court governance which is illustrated by the use of "customer Service Surveys" which purport to measure administrative efficiency. They are also used in the JACS Annual Report and in the "Business Plan performance indicators" and as such impact on budgeting or personnel management. Higgins CJ considered the surveys are symptomatic of "managerialist ideology" which is "inappropriate and degrading to the judicial process" and a poor use of finance which could be directed to the Supreme Court library.[43]

Other problems identified by Higgins CJ included financial restraints which have been of concern in the ACT. His Honour noted that there have been "enormous pressure to fund high profile, media-driven causes"[44] such as school and hospitals and yet there has been difficulty in obtaining funds for less popular items such as courtrooms.

The Court Governance Committee introduced in 2006 was seen by Higgins CJ as an improvement on the "mega-department model" of court governance,[45] although his Honour had some reservations about the departmental model as "optimal" for judicial independence. Perhaps, as Higgins CJ has suggested, "there is a need to continually review the court structure, not only in a bid for efficiency and accountability, but so as to enhance judicial independence."[46]

The separate department model

Under the separate department model the courts are administered by a department of state devoted exclusively to judicial administration, although remaining within the umbrella of a general department of justice. In South Australia the Courts Department[47] was established in 1981. This Department was separate from the Attorney General's Department, however it fell within the portfolio of the Attorney General. It assisted the judiciary and was not responsible for the formulation of government policy. The success of the separate department model in South Australia was attributed to the high degree of formal and informal interaction between the courts in the system and the partnership established between the judiciary and the administrators.[48]

The court staff were heavily involved in management and administrative activities in this model. Achievement such as the first Australian State-wide, integrated courts' computing system, were possible due the close working relationship between the judiciary, staff and executive management.[49]

The separate department model does not completely solve the problems of compromising judicial independence because the separate department is an arm of the Executive. Conflicts of interest will arise for the chief executive officer who is responsible to the relevant cabinet minister, usually the attorney general and the chief judicial officer or judges of the court. The separate department model is not currently operational in any Australian court system.

The federal model

This model of court governance is one of self-administration by the court itself with reporting and accountability to Parliament. It is the model of administration applying to the Federal Court of Australia.

When the Federal Court of Australia was established by the, the Commonwealth Attorney-General's Department was at first responsible for the administration of the Court. The Federal Court of Australia Act was amended in 1989 to establish self-administration. From 1 July 1990 the Attorney-General's Department transferred responsibility for the supervision of financial management and practices to the Federal Court, the Family Court and the Administrative Appeals Tribunal and they became self-administered.[50]

I will return to a more detailed discussion of this model of court governance later in the paper.

The autonomous collegiate model

An entirely new model of court governance was introduced in 1979 for the High Court of Australia. Section 17(1) of the High Court of Australia Act 1979 (Cth) provides: "The High Court shall administer its own affairs subject to, and in accordance with, this Act."

The Justices of the Court collectively act as the relevant policy and administrative decision makers and the chief executive officer is responsible to the court as a whole. Part III[51] of the can be contrasted with Part IIA[52] of the Federal Court of Australia Act 1976 (Cth). Section 19(1) of the HCA Act provides that the Chief Executive Office and Principal Registrar have the function of acting on behalf of, and assisting, the Justices in the administration of the affairs of the High Court. Under Part IIA of the FCA Act the Chief Justice is responsible for managing the administrative affairs of the Court and is assisted by the Registrar of the Court.

The Finance Committee advises the Court in relation to the administration of the Court's financial affairs by reviewing and making recommendations on Court budgets, monitoring and reporting on expenditure and assessing and reporting on financial business risks. The Chief Executive Officer represents the Court before the Estimates Meetings of the Senate Legal and Constitutional Affairs Committee.

In commenting on the governance of the High Court, the then Chief Justice, Sir Harry said:

Under the High Court of Australia Act 1979 the High Court now administers its own affairs… However, what must be recognized is that the independence of the Court is not much strengthened by the new system. The Court must still depend on Parliament for its annual budget, and that means that in practice the Executive can still effectively influence the decision of important matters of administration affecting the Court, such as staff ceilings. I do not mention this by way of complaint. Under the Westminster system of government the Executive, through its control of Parliament, normally has the last say in matters involving the expenditure of public money, including that spent in providing the system of justice… The independence of the judiciary is maintained by the character of the judges themselves, the support of the legal profession and the sentiments of the community generally. It is an illusion to think that legislation such as the High Court of Australia Act has more than a symbolic significance so far as the independence of the Court is concerned.[53]

Chief Justice French has advocated a separate Appropriations Act for the High Court to disconnect the funding from the Executive agencies' funding and so ensure that the finances of the court would not be affected by internal trade-offs between various Executive agencies[54]. French CJ's argument for funding of courts is one limited by "boundary conditions". These are "the constitutional character of the courts, the nature of their functions and their relationship to the Legislative and Executive branches of Government".[55]

The judicial autonomous model

The judicial autonomous model developed from the separate department model. The courts moved to governance by a judicial council or court's commission of judges, magistrates and a court services department to improve judicial independence and promote improved efficiency and effective court management.[56]

In South Australia the created the Courts Administration Authority with a chief executive responsible to the Council (annexure 3). The Council is made up of three chief judicial officers of the State. The Chief Justice has a power of veto and is the chair of the Council. The Council is like the board of an incorporated joint venture among the various State courts. It nominates the Administrator who is responsible to the Council for the control and management of the Court's staff, the property, including courthouses and other property. The budget is formulated by the Council and is submitted to the Attorney-General. The Council also presents an annual report that is tabled in Parliament. The Chief Justice is able to argue for appropriate funding either by appearing before Parliament to present the budget of the Authority or through the annual report.

The AIJA report[57] concluded that this model of court governance has two main advantages. The first being that it supports judicial independence because the court administration is not under the direction of the Executive and it can manage its resources independently of politicians or bureaucrats. Secondly there is a greater potential for efficiency and effectiveness in court administration because those responsible for the courts' outputs have authority over the staff and infrastructure to ensure they are achieved. Also because of the joint responsibility for several courts this model is better able to achieve economies of scale.

South Australia has been successful in offering specialist professional training for court administrators. There has also been considerable development in innovative client service and community involvement. One criticism raised has been the considerable administrative work required by the Chief Justice, however it has been suggested that the role should be a broad strategic one rather than one of micro-management.[58] One possible disadvantage of the South Australian model could be possible exposure of the court or offices to commercial risk and a possible problem of accountability in having judicial officers acting in an "analogous capacity to public service Executive in making budget bids"[59] It is also a model that requires close collaboration between parties and inter-personal co-operation among the Chief Justices.

Federal Court of Australia

Under the self-administration model applying to the Federal Court of Australia, the Chief Justice, assisted by the Registrar, is responsible for the administration of the Court (see annexure 4)[60]. The Registrar is appointed by the Governor-General on the recommendation of the Chief Justice[61] for up to five years. This period can be renewed. The practice and procedure of the Court, as well as judicial information services, are managed by the Chief Justice and the judges of the Federal Court together as a collegiate body[62].

There are two overarching committees, the Policy and Planning Committee and the National Practice Committee[63]. Members of the National Practice Committee and any of its standing committees are appointed by the Chief Justice in consultation with the Convenor. This Convenor is appointed by the Chief Justice following consultation with the senior judge in each registry. Membership of all other committees is decided by the Chief Justice who takes into account the preferences of the judges, following an annual call for expressions of interest. The committees are assisted by support staff, provided by the Registrar.

The role of the Policy and Planning Committee[64] is to consider the policy and planning implication of proposals put forward by other Judges' Committees or by Registries, particularly those involving significant expenditure of Court funds[65]. It does not supplant the specific policy role of Judges' Committees however it considers policy proposals and refines and prioritises them when required. This Committee considers longer term planning issues and may provide a reference group for the Chief Justice for urgent matters. There are nine members of this Committee, in addition to the Chief Justice, who are appointed for a maximum of three years.

There are a number of standing committees which report to the Policy and Planning Committee and which focus on specific areas. These standing committees include the Finance[66], Security, International Development and Remuneration Committees. There are, in addition to these standing committees, other working groups and committees established to address short term issues such as enterprise bargaining[67] and a Federal Magistrates Court working party. There is also an Audit Committee which has the responsibility of reviewing and recommending to the Chief Justice strategic and annual internal audit plans. It also co-ordinates the audit programs of the internal auditors and those of the Auditor-General (an independent office of the Commonwealth). The Audit Committee ensures that there is prompt follow-up by management of audit recommendations and reviews the Court's annual financial statements. This Committee consists of an independent chairperson, two judges, the Registrar and the NSW District Registrar. In addition to the committee members, the Executive Director, Corporate Services and the Chief Financial Officer of the Federal Court as well as representatives of the Australian National Audit Office (ANAO) attend the committee meetings as observers. Staff of the ANAO inspect the Court's financial statements and provide the audit certification.

As the Federal Court is self administering, it has a separate budget appropriation and reporting arrangement to Parliament. It does not receive a budget allocation from the Attorney General, although the Federal Court does fall under the Attorney-General's portfolio. The Federal Court prepares estimates of income and expenditure for the current year and forward estimates for the next three years, as do all government agencies. These forward estimates are based on the current year's budget, adjusted by a consumer price index increase and reduced by an efficiency dividend, since 2007.[68] An additional 2% efficiency dividend was imposed on all Government agencies, including the Federal Court which reduced the Court's annual appropriation by $1.6m.

If there are any increases in judicial remuneration granted by the Remuneration Tribunal or increases in rent for the Commonwealth Law Courts buildings, the Court receives supplementation. If, however, other costs such as staff salaries are increased, above the CPI adjustment, the Court does not receive supplementation to the budget. There is no formal procedure for applying for a general increase in the budget. It is, however, possible for the Federal Court to apply for additional funding for additional costs that result from new government policy or additional jurisdictions, by preparing a New Policy Proposal, in conjunction with the Attorney-General's Department. The Senate Estimates Committees scrutinise budget documents and may seek explanations from Ministers and departmental or agency officers who implement the policy, such as the Registrar of the Federal Court.

The National Practice Committee is the other overarching committee. It also has a number of standing committees managing specific areas of the Court's practice and procedure. These committees include the Rules, Management of Appeals, Native Title, Criminal Procedure and Assisted Dispute Resolution Committees. The Rules Committee, for instance, monitors and reviews the operation of the Federal Court Rules and practice notes for legislative developments and judicial determinations. It liaises with other committees and makes recommendations regarding the operation and amendments required. The Native Title Committee provides advice to the Chief Justice and the judges concerning the management of the Court's native title jurisdiction, particularly on practice and procedure to ensure there is a nationally consistent approach. It also provides advice on the allocation and listing of native title cases. As well as the standing committees, the National Practice Committee also has additional committees and working groups created from time to time, such as the eServices reference group to discuss the development of eCourt technologies. There is an Admiralty Committee which is concerned with the practice and procedure of the admiralty jurisdiction of the Court which reports to the Chief Justice and judges of the Federal Court as a collegiate body. There are separate Library, Judicial Education and Information Technology Committees which report directly to the Chief Justice and Judges of the Court. They may also raise issues for consideration by the Policy and Planning Committee and the National Practice Committee.

Agencies such as the Federal Court present their annual reports for the previous financial year in October[69] in order to provide accountability for the management of the Court's administrative and financial affairs.[70] The annual report is prepared by the Court's administrative staff with the oversight of a judge, the Registrar and the Deputy Registrar of the Court. It is submitted by the Chief Justice to the Attorney-General who presents the report to Parliament. In practice the Court's administrative affairs are subject to Parliamentary scrutiny through the work of the Estimates Meetings of the Senate Legal and Constitutional Affairs Committee (Senate Estimates Committee) where the Registrar of the Court is provided with the opportunity to clarify aspects of the administration.

The Chief Justice of the Federal Court assisted by the Registrar and committees under the guidance of the Policy and Planning Committee implements the budget allocation. The Chief Justice and the Judges of the Federal Court, as a collegiate body, mainly through the guidance of the National Practice Committee manage the procedure of the Court. At times the Attorney General may approach the Federal Court on specific issues.

The change to self-administration since 1990 has been regarded as not only providing freedom from the Executive but a change that has encouraged initiatives and efficiencies. In 2007 the Chief Justice of the Federal Court[71] commented on the success of the federal model of self-administration. His Honour considered it to be "one of the Court's most important and substantial achievements, particularly because as the model has evolved, it has acquired a strongly collegiate character which has led to a highly efficient administration."[72] Chief Justice Black also considered that a consequence of this form of court governance has been the fostering of important procedural and administrative reforms and innovation, particularly in the use of information technology.[73]

An example of the workings of self management in the area of procedural reform in the Federal Court is the individual docket system, introduced in 1997. The initiative for the change came from the Court itself. When a matter is filed in the Court it is automatically allocated to a docket judge who manages the case through the interlocutory phase and conducts the hearing.

Self-administration of courts is, on one view, one of the most important means of achieving the highest level of operational efficiency of courts. Justice Sackville has stated that "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" making the Courts initiators of change and more accountable for their own managerial performance, so strengthening the "capacity of the courts to maintain the rule of law".[74] Australia has been referred to as a "living laboratory of courts' governance experimentation".[75] The impartiality of judicial decision-making has been said to depend "heavily on the strength, financial security and organisational professionalism of the judiciary as an institution."[76]

While the model of court governance operating in the Federal Court has many advantages, it has provided numerous challenges. Judges often experience a considerable increase in workload by their commitments to a number of committees, particularly as convenor of the committee. This role involves organisation of meetings, supervision of the work of the committee and the preparation of reports for the Chief Justice and other judges of the Court.

A constant challenge provided by self-administration is the management of the Court's budget.[77] This is a significant undertaking involving maintenance of registries throughout Australia, the management of Court properties, the employment of approximately 350 staff and every aspect of administration from stationery to substantial investments in technology. In 2008-09 the Federal Court operated at an approved budgetary deficit and needed to dramatically reduce its operating costs. The difficulty faced by the Court was balancing the need to make the required savings with the commitment to improving services to Court users.

The management decisions of the Chief Justice are not always accepted without question by Parliament. In May 2009 the Registrar was questioned before the Senate Committee about proposed changes to the registry services in Tasmania. These changes had been proposed to improve efficiency and reduce the budget deficit. A motion was passed in the Australian Senate on 12 August 2009[78] calling for full retention by the Federal Court of the registry service in Tasmania. By September there was considerable concern expressed in the Senate about the possible loss of the position of district registrar in Tasmania and the proposal to provide these services from Melbourne. When debating the response by the Chief Justice the Federal Court was asked to reconsider its approach. Senator Abetz considered that the changes were "another example of bureaucratic interference and bureaucratic empire building at the expense of service delivery" and stated that:

Tasmania is a fully-fledged state of the Federation. It has a right to full Federal Court registry facilities in Tasmania. To make it an outpost of the Melbourne registry is completely and utterly unacceptable… It is very interesting that we are getting rid of the fully-fledged Tasmanian district registrar. And guess what we need to replace him? A registry manager will be appointed. So here we go, the actual person who delivers the justice, who helps to get cases moving, the person who can do all these things to affect justice, that person is removed and backfilled by a bureaucrat. This is how the bureaucracy takes over… But let me simply say that the Tasmania district registrar… a man with whom I went through law school, is also very experienced, very capable, and has the full confidence of the Tasmanian legal profession.[79]

The Federal Court of Australia Act 1976 (Cth) was amended by the in November 2009. Section 34 now requires the Federal Court Registrar to "ensure that at least one Registry in each State is staffed appropriately to discharge the functions of a District Registry, with the staff to include a District Registrar in that State".

The Federal Court model of governance is not static. It is a dynamic model which has been reviewed from time to time. In October 2002 the Chief Justice of the Federal Court established an Organisational Review to identify ways of improving the Court's administrative efficiency. Practical issues such as the location of registries, the allocation of resources, travel expenditure, court reporting and video conferencing, use of interpreters, filing of documents and case management were all examined.

The review was conducted by a Steering Committee which identified the following principles it considered should guide the administration of the Court:

  • The administration of the Court must be consistent with judicial independence.
  • The administration of the Court should be as transparent as possible.
  • Judges should be consulted to the maximum extent feasible in relation to significant decisions affecting the Court or the performance of their judicial function.
  • The Court should acknowledge that the processes of consultation and collegiate decision-making must be supported by a flow of adequate information.
  • The Court should ensure that measures are in place to monitor implementation of decisions taken in the Court.
  • The culture of the Court should encourage both an openness and a willingness to reassess established administrative structures and patterns.
  • While Registry staff cannot determine or limit Judges' entitlements, those entitlements should be set down a clearly as possible to avoid any misunderstanding in administering them.
  • District Registrars have a management responsibility for the efficient and effective operation of each Registry (including financial management) and should exercise these responsibilities and delegations in accordance with the Court's policies and practices, and in consultation with local Judges.

The Committee recognised issues that need to be taken into account in considering the governance of the Court. These include the need for the Court to acquire a greater internal capacity for policy development, the difficulty of examining alternative structures and the consequences that may flow from their implementation, the independence of each judge from Government and from each other, the involvement of 45 judges in the decision-making processes, the often fragmented and slow process of policy implementation and the exceptionally heavy burden on the Chief Justice.

Concluding observations

It may be that familiarity unduly influences my views about the model of court governance which optimises judicial independence and minimises influence from the Executive. However the legislative and administrative arrangements which govern the allocation of resources to the Federal Court (and other federal courts namely the Family Court of Australia and the Federal Magistrates Court) and the management of those resources create a high level of autonomy which means that the Court and its judges are not beholden to the Executive for resources to enable the court and its judges to go about the exercise of judicial power. It is not to say the Federal Court is not accountable for what it does and the significant amounts of public money it spends. It is and constantly so. Also the picture is not one of enduring perfection. In recent years the Federal Court has had to meet requests of the government to, in effect, reduce expenditure by fixed percentages of aggregate expenditure sometimes described with a measure of innocence as "efficiency dividends". The need to do so, by way of example, contributed to the dismantling of a recently created research directorate within the Federal Court comprised of a senior administrator (with extensive legal academic experience) and a number of young but talented and enthusiastic researchers who, while the directorate existed, provided invaluable support to judges of the Court for both curial and extra curial activities.

Of course this model has, as to the Federal Court, operated in relation to a superior court with a large number of judges (at least by Australian standards) and a significant number of staff to administer the court. However I see no reason, in principle, why that the same model could not operate in relation to a much smaller court with few judges and limited staff. It would be necessary for there to be members of staff with the skills and expertise to administer the resources made available to the court. Some additional demands would be made probably of the Chief Justice in ensuring continuity of adequate funding to the court and its responsible expenditure.



[1] A paper delivered by the Hon Justice Michael F Moore on Monday 8 November 2010. I would like to thank my judicial assistant, Jennifer Farrell, for her assistance in the preparation of this paper.

[2] Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, (the Fitzgerald Inquiry), 1989.

[3] The Inquiry produced 21,504 pages of transcript, covered 238 sitting days and heard 339 witnesses . A report on this part of the transcript can be found at:

[4] Joseph S. and Castan M., (2001) Federal Constitutional Law: A Contemporary View, Law Book Company, Pyrmont, p.161

[5] Nygh P.E. and Butt P. (1998) Separation of Powers , in Butterworths Legal Dictionary, Butterworths, Sydney, p.396

[6] Blackshield T., Coper M. and Williams G. (Eds.) (2001) The Oxford Companion to the High Court of Australia, Oxford University Press, South Melbourne, p.623

[7] McHugh M. (2002), "Tensions between the executive and the judiciary", 76 ALJ 567.

[8] ibid.

[9] Kirk J. (2001) Rights, Review and Reasons for Restraint, 23 SLR 19 at 20

[10] a) At a federal level, Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476, in which "the Court effectively held that a widely expressed privative provision in the Migration Act did not exclude the jurisdiction of the Court to review the relevant decisions for jurisdictional error", as characterised by Chief Justice French: French, R. (2009), The Future of Australian Constitutionalism, presentation at the 21st Anniversary Celebration for the Centre for Comparative Constitutional Studies on 27 November 2009, available at < Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230, in which "the system of military courts established by the Commonwealth Parliament was found to offend against Chapter III of the Constitution", as characterised by Chief Justice French: French, R. (2009), ibid.

[12] McHugh, M. see above note 7.

[13] Attorney-General (Cth) v The Queen [1957] HCA 12; (1957) 95 CLR 529 at 540.

[14] Report of a Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, Pursuant to Orders in Council, Fitzgerald Report (1989) Queensland Government Printer, 1989 at p. 134.

[15] Byron G: Court Governance: The Owl and the Bureaucrat, Legal Practice Judges' Forum, International Bar Association 1998 Conference Vancouver, Canada 13-18 September 1998. JJA (1999) p 149.

[16] French CJ, Boundary Conditions – The Funding of Courts Within a Constitutional Framework, AIJA Australian Court Administrators' Group Conference, Melbourne 15 May 2009.

[17] Brennan CJ, The State of the Judicature, (1998) 72 Australian Law Journal 33 at 35.

[18] Three systems of court governance were examined by Professors Church and Sallmann in 1991 (The Relationship between Structure and Process, Ch 5 Governing Australia's Courts AIJA (1991). These systems were the generalized executive control of Victorian courts, the independent courts authority in South Australia and the semi-independent system of the Family Court of Australia. This research was updated in 2000 by Professor Sallmann and Richard T Wright: Governing the Courts. Discussion paper on Civil Justice in Victoria, April 2000.

[19] Alford J, Gustavson R and Williams P., The Governance of Australia's Courts: A Managerial Perspective AIJA (2004) at p. 85

[20] See above note 19

[21] Ibid

[22] Lawlink is the online government portal to law and justice agencies and services in New South Wales.

[23] The NSW Department of Courts Administration was abolished in 1995. It did not enjoy the same success as the South Australian model because of the significant cultural and political differences, the NSW system was bigger and more diverse, there was a massive budget reduction programme in place, the judiciary was large in number and the department retained a policy and legislation division responsible for advising executive government (Byron, G: Court Governance: The Owl and the Bureaucrat, Legal Practice Judges' Forum, International Bar Association 1998 Conference Vancouver, Canada 13-18 September 1998. JJA (1999) at p. 153)

[24] Corrective Services NSW, Judicial Commission of NSW, Legal Aid Commission of NSW and the Office of the Director of Public Prosecutions.

[25] There are 36 business units, including the Assets Management Branch, the Bureau of Crime Statistics and Research, Coronial Services, the Sentencing Council and the Tribunals such as the Administrative Decisions Tribunal and the Dust Diseases Tribunal.

[26] District Court Civil Registry, District Court Criminal Registry, Land and Environment Court, Local Courts and Supreme Court Registry

[27] The Resources Committee identifies and communicates the Court's requirements for resources in a formal way to the Executive and cooperates with the administration to apply those resources. See above note 19 at 137

[28] See above note 19 at p.141

[29] Justice T H Smith: Court Governance and the Executive Model – a paper delivered at The Judicial Conference of Australia, 2006 Canberra at p. 3.

[30] These portfolios include the Attorney-General and the Minister for Racing, Police and Emergency Services and Corrections, the Minister for Consumer Affairs and Gaming. See and (annexure 1B)

[31] See above note 29 at p. 9

[32] See note 29 at p. 12

[33] See note 29 at p. 13

[34]See note 29 at p. 23

[35] ibid

[36] The ACT Supreme Court, Court of Appeal and the ACT Magistrates Court.

[38] This is indicated in Figure : Organisation Structure as at 30 June 2010 in Section A, Performance and Financial Management Reporting at p. 3, Annual Report 2009-10 Volume 1

[39] The other agencies are the Office of Regulatory Service, the ACT Parliamentary Counsel's Office, the ACT Government Solicitor, the Security and Emergency Management Branch, the Legislation and Policy Branch as well as Statutory Office Holders such as the Public Advocate and the Human Rights Commission.

[41] Higgins CJ: Court Governance and Judicial Independence in the Australian Capital Territory, The Judicial Conference of Australia, October 2006, Canberra at p. 6

[42] See above note 41 at p. 3

[43] ibid

[44] See above note 41 at p. 5

[45] See above note 41 at p.10

[46] ibid

[47] This Department was later named the Court Services Department.

[48]Byron, G: Court Governance: The Owl and the Bureaucrat, Legal Practice Judges' Forum, International Bar Association 1998 Conference Vancouver, Canada 13-18 September 1998. JJA (1999) at p. 151

[49] Ibid at p. 152

[50] The Federal Court of Australia Act 1976 (Cth) was amended by s 15 of the Courts and Tribunals Administration Amendment Act 1989 (Cth) and ss18A and 18B added.

[51] Administration of the High Court

[52] Management of the Court

[53] Sir Harry Gibbs: The High Court Today. 10 The Sydney Law Review (1983) 1 at pages 3 - 4

[54] French CJ Boundary Conditions – The Funding of Courts Within a Constitutional Framework AIJA conference, 15 May 2009, Melbourne at p. 26

[55] French CJ Boundary Conditions – The Funding of Courts Within a Constitutional Framework AIJA conference, 15 May 2009, Melbourne at p. 1

[56] See above note 48 at p. 152

[57] See above note 19 at p. 89

[58] See above note 19 at p. 91

[59] Ibid at p. 92

[62] Sections 38 and 59 of the Federal Court of Australia Act 1976 (Cth) provide for collegiate responsibility with regard to the rules of the Court. Section 32A also specifically provides that the power of the Judges of the Federal Court or a majority of them under s 59 to make Rules of Court shall be deemed to extend to Rules of Court relating to the practice and procedure to be followed in applications in which the State Supreme Courts are invested with jurisdiction in chambers.

[63] For details, see diagram of the Governance of the Federal Court of Australia (annexure 4).

[64] The role of the committee was considered and agreed by the Judges at their meeting in Sydney on 28 March 2003.

[65] Amounts over $250,000

[66] Any committee concerned with financial matters must have regard to the provisions of the Financial Management and Accountability Act 1997 (Cth).

[67] The Enterprise Bargaining Committee meets to consider the Federal Court's enterprise agreements, concerned with staff remuneration and conditions for example the Certified Agreement 2008 – 2010 and the Enterprise Agreement 2010 – 2011.

[68] The CPI increase is usually reduced by an efficiency dividend. For example in 2010 the CPI of 1.7% was reduced by an efficiency dividend of 1.25% so that the Court's funding was only increased by 0.45%.

[69] The annual report of the Federal Court for 1 July 2009 – 30 June 2010 will be presented in October 2010.

[71] The Hon Chief Justice Michael E J Black AC

[72] The Hon Chief Justice Michael E J Black AC; The Federal Court of Australia: The first 30 Years – A Survey on the Occasion of Two Anniversaries 31 Melb U L Rev [v] (2007) No 3 1017 at p. 1048

[73] Ibid at p. 1045

[74] Justice Sackville: Courts In Transition: An Australian View – New Zealand Court of Appeal/High Court Judges' and Masters' Conference, New Zealand, 20-23 March 2003 at p. 21.

[75] Prof P A Sallmann: Governing the Courts at p. 3

[76] Ibid at p. 3

[77] Revenues from ordinary activities totalled $115.487 in 2009-10 and included an appropriation from the Government of $88.410m and $11.380m from sale of goods and services. Total expenses were $114.245m: Annual Report 2009-2010 at p. 55

[78] Commonwealth of Australia, Senate, 12 August 2010 Record of proceedings (Hansard) at page 4720 – Senator Abetz (Tasmania).

[79] Commonwealth of Australia, Parliamentary Debates, Senate, 7 September 2009, Responses to Senate Resolutions (Hansard), pages 5756 - 5757


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