Speeches
Supreme and Federal Courts Judges'
Conference
Melbourne - 21-25 January 2012
The Conference - 40 years on
Justice J.A. Dowsett
Introduction
My only
qualification for giving this paper is that, from the late 1980s until 1997, I represented
the Queensland Supreme Court
on the steering committee and organized one
conference in Brisbane. For the one day bonding activity I took about 100 judges
plus
accompanying persons to a place called O'Reilly's in the rain forest on
the New South Wales border. It rained. The then chair, Ian
Sheppard, asked me
what I had expected to happen in a rain forest. It was the last wet summer in Brisbane until quite recently.
Nonetheless people seemed to enjoy themselves.
My purpose today
is to share with you some of the available history of this conference. However
I do not want to engage in reminiscence
and anecdote, or at least not
exclusively. The history of an institution is only as valuable as is the
institution itself. In my
view this conference has been, and is, a very
important element of the Australian judiciary - our national judiciary. It has
been
instrumental in shaping that national judiciary. If we understand how it
has done so in the past, we may be better able to utilize
its potential to do
so in the future. I shall return to this theme at a later stage.
In preparing
this paper, I sought the assistance of the various chief justices, asking for
court files and information as to attendance
at these conferences, funding and
levels of judicial support. Although I received substantial responses to these
enquiries, there
was little that was not obvious. To some extent I felt that I
had wasted the time of busy people. However the responses demonstrated
judicial
commitment to the conference and appreciation of its value. The Supreme Court
of Tasmania provided a treasure trove of
material. Bruce Lander and the librarian
in the South Australian District Registry of the Federal Court also provided
valuable
material, as did the Queensland Supreme Court Library and Debra
Mullins of that Court. Other courts produced material which was
relevant but
generally replicated some of the material derived from the named sources. In
particular, I obtained minutes of the
first meeting of the steering committee
and associated correspondence. I also obtained a short history of the
conference, written
by the first chairman, Russell Fox, in 1990. The document
seems to have been reprinted in 2006, presumably for distribution at a
conference.
I have also had
access to an address by the late Dame Roma Mitchell as Governor of South
Australia, opening the conference in Adelaide
in 1995. Some of us were present
on that occasion. As another founder of the conference, she confirmed Russell
Fox's history of
events. I sent a draft of my paper to him, to Sir Guy Green
and to Ian Sheppard, all of whom have chaired the steering committee.
Some of
their comments have been incorporated into the paper in its present form. Much
of what I say concerning the early years
of the conference comes from these sources
and from comments by Ian Sheppard when he was chairman.
I propose to
discuss the decision to hold the first conference, pausing to say a little
about the extent to which decisions and
practices adopted in the early days have
continued to affect the way in which the conference has since been conducted. I shall then
say something about my experiences on the steering committee and
at conferences. I shall address one example of press coverage of
the
conference, and then outline the major achievements of the conference as I see
them. Finally, I shall say something about the
future.
The idea, the steering committee and the first conference
As to the
establishment of the conference, Russell Fox's paper sets out the circumstances
in detail. To some extent, it reflects
the charm of an earlier era. I can do
no better than quote verbatim from it:
Having been persuaded, in
connection with another body active in legal matters with which I had an early
association, that
a record of its beginnings is of importance and of interest
to many, I tender some factual material about the birth and first
years of the
Conference. I observe in passing that the use of an abstract noun to describe
it points to what is probably
a most important part of its success, namely the
lack of formal structuring. It is a voluntary organization without a
constitution.
Guided by practice and precedent, its progress is in the hands
of those who attend its annual meetings.
In what follows I cannot
sensibly avoid the use of the first person singular, but I hope that I will be
acquitted of any
charge of egotism or, at least, excessive egotism. The idea
that our Judges might meet together at regular intervals to discuss
matters
arising in practice or affecting their judicial activities came to me in 1970,
after I had attended a seminar in
Honolulu conducted jointly by the Hawaiian
judiciary and Judges from the west coast of the United States. I was
despatched
thence by the Federal Government. Reynolds JA, from New South Wales, was the other Australian present. As I recall, the seminar dealt
mostly
with the rules of evidence and was practical to the point of giving us tests -
"I object!", "I move
to strike!". It was very well-conducted, and Reynolds and
I, with others, enjoyed the hospitality of the Chief Justice
of Hawaii (Richardson
CJ).
Having pondered on the
possibility for a time, my opportunity to raise the matter to a captive
audience came when the Churchill
Foundation held its next national Fellowship
Committee meeting in Canberra. On the Fellowship Committee were a number of Judges,
representative of their respective States and Territories, with Burbury CJ of Tasmania as Chairman. Initially, I canvassed the
possibility of a scheme which had more or
less crystallized in my mind with a group comprising, as best I can recall,
Jackson
CJ, Chief Justice of Western Australia, Mitchell J, of South Australia and W. Campbell J, of the Queensland Supreme Court. Their
reaction was
immediate and enthusiastic. Burbury CJ, was not at first part of the group,
but within half an hour or so
we found ourselves on a street corner in his
company (I have a clear visual recollection of the scene). Fearing I might
thereafter lose him, I briefly (very briefly) propounded the suggestion, and he
too thought it a good idea. I remember that
he immediately proposed Neasey J
as the Tasmanian representative on the necessary organising committee (or
'steering' committee
as it [came] to be called). Jackson CJ suggested, at
an early stage, that Wickham J could be an alternate for him, and the
latter soon became the Western Australian representative.
So it was that committee
members arranged to correspond, and to meet. Meares J, from New South Wales,
and Kerr J, from the
Australian Industrial Court (he was also an 'additional
judge' of the A.C.T. Supreme Court) agreed to join the Committee. By
correspondence, and phone calls, we sorted out some matters and refined the
concept. The conference now proceeds closely
along the lines then planned for
it.
Russell Fox was,
in the early 1970s, the Senior Judge of the ACT Supreme Court. He was to
become Chief Judge of that Court, as well
as Chief Justice of Norfolk Island
and one of the first three judges of the Federal Court. Sir Stanley Burbury
was to become Governor
of Tasmania. He was the first of a number of Tasmanian
Chief Justices who were appointed as Governor of that State after close
association with the conference. As I have said, Roma Mitchell was to become
Governor of South Australia. Wally Campbell became
Chief Justice, and then Governor
of Queensland. John Kerr, of course, became Chief Justice of New South Wales
and then, Governor
General.
The first
meeting of the steering committee was held on 27 March 1971 at the home of
Meares J of the New South Wales Supreme Court.
All of the state Supreme
Courts except Victoria were represented, as were the ACT Supreme Court and the Papua New Guinea Court.
The somewhat anarchic characteristic which has marked the
conference ever since its foundation, as mentioned by Fox, was presaged
in the
first resolution of the meeting. Those present resolved that there was no need
to elect a chairman. According to the minutes,
the absence of a Victorian
delegate was explained, although the explanation is not recorded. My
understanding is that there was
an institutional objection to judicial
conferences. Nonetheless, Victorian judges were to be kept informed of
progress.
The meeting identified
two goals which were not necessarily related. The first was to conduct an "occasion"
for discussion
of topics of interest to Supreme Court judges. The second was
the establishment of a "permanent organization which might organize
on a long
term basis various activities of interest to judges in relation to their work". The meeting concluded that there
should be a conference to facilitate the
achievement of both goals. Only "modest" steps were to be taken towards either
goal. Salaries should not be discussed. You will note that the "occasional"
conferences were for Supreme Court judges
only. The Federal Court had not then
been established. The proposed permanent organization was to have a wider
constituency.
This dichotomy
of purpose was to continue for many years. Well into the 1990s, there was no
assumption that the conference would
be held from year to year. Those
attending each conference were asked to indicate whether a conference should be
held in the following
year. There was, from time to time, debate about that
question. There seems to have been little or no further debate about the
"permanent organization" until the early 1990s. Nonetheless the original
dichotomy of purpose affected the way in which
the conference was conducted,
the composition of the groups which attended and the subjects addressed. In
particular, there was
general acceptance of the proposition that the conference
had no representative function, leading to the result that controversial
matters were not generally discussed. Apart from one non-legal topic at each
conference, subject matter generally concerned either
substantive law or court
craft and procedure. One exception was a proposal to abolish the Victorian
Accident Compensation Tribunal
and the effective loss by some of its members of
their judicial status. This was in 1992 and 1993, prior to the establishment
of
the Judicial Conference of Australia. As I recall, the Victorian judges
had, for some time, been concerned about the transfer of
jurisdiction from courts
to other bodies. We were also reluctant to invite judges from emerging
south-east Asian and Pacific nations
where there was any doubt about the
independence of the judiciary in the countries in question.
Returning to the
first conference, the steering committee resolved that it should be held in Canberra in January 1972, and that New
Zealand and PNG Judges should be invited to
attend. The venue was later changed to Sydney. The conference was to be
confined to
Supreme Court judges (specifically including chief justices) and judges
of the Commonwealth Industrial Court. The conference was
to decide whether
High Court and District Court judges should be invited to be members of the
proposed permanent organization.
Whilst it might organize activities for
magistrates, they were not to be members of it. Academics might be invited to
be associated
with the organization, but not members. The organization might
be called "The Australian Judicial Institute". Chief justices
and attorneys general
were to be advised of these decisions. Government financial assistance was at
least contemplated. It was
hoped that the Chief Justices' Conference would
support the proposal. Those attending the meeting agreed to donate $10 each for
petty cash.
The proposed
conference became public knowledge, presumably because the committee members
decided that it should. In volume 45 of
the Australian Law Journal at 651, the
proposed "summer judicial conference" was announced as follows:
History will be made
when, for the first time, Supreme Court Judges from the States and Territories
of Australia meet in
conference at the University of New South Wales (from 25th
to 27th January 1972) to discuss matters of common legal interest. That over forty Judges have so far stated that they will be attending
demonstrates
the interest which the occasion has generated. The central theme selected for
the conference is "The
Trial", and the programme has accordingly been designed
to deal in a practical way with problems which arise in the course
of trying
cases, civil and criminal. There are to be five working sessions, and two
social events-a luncheon on the first
day, before work commences, and a
cocktail party on the last day, when work is done. Sir Leslie Herron, Chief
Justice of
New South Wales, is to be chairman of the first session, at which a
paper, Fact Finding, will be delivered by Sir Harry Gibbs. In the final
session, which will be under the chairmanship of Sir Stanley Burbury, Chief
Justice of Tasmania, there will be an opportunity for the Judges to decide what
the future pattern of these conferences
should be and to establish an
organisation to arrange them.
The holding of this
conference shows Australia to be following, and not too belatedly, trends in
both the United Kingdom
and the United States.
A discussion of
developments in the UK and the USA followed. The article then continued:
The case for an
Australia-wide judicial conference therefore needs no argument. Some may
believe that judges already have
adequate opportunity for informal discussion
with their brothers about the problems that arise in the course of judicial
work. But these discussions are haphazard and not preceded by any planned or
disciplined study or thought such as can take
place at a properly organized
seminar. It is also sometimes suggested that judges from different courts and
from different
States have the opportunity to meet informally and exchange
experiences at Australian Law Conventions. But these Conventions
are organized
primarily for other purposes and rarely, if ever, deal in any detailed way with
the problems of judicial
work or its administration. What is now being
considered is the provision of an opportunity for Australian judges to meet for
exchange of information, experience and ideas after some planned work has been
done to that end. It is, if we may say so,
a development much to be applauded.
This
journalistic support is to be contrasted with subsequent journalistic hostility
to which I shall later refer. As to the social
programme, Roma Mitchell said,
in her address, that initially, there was to be none, maintaining the image of
judicial sobriety
and restraint. However John Kerr prevailed on the Attorney
General of New South Wales to host a function and, despite earlier good
intentions,
judges and wives attended. As Dame Roma pointed out, in those days there were
only wives. As to avoiding social programmes,
it has all been downhill since
then.
According to Fox,
from about 1974, the Victorian judges attended but, for many years, in small
numbers. He recorded strong support
from Queensland and South Australia.
Events at the
first conference are recorded in a summary, presumably prepared by Fox. Apart
from the forty-six Australian judges,
one New Zealand judge and three judges from
Papua New Guinea attended. The High Court judges were invited, as was Sir
Frank Kitto
who had recently retired. At some time during the conference each
of Sir Garfield Barwick, Sir Frank Kitto, Sir Victor Windeyer,
Sir Cyril Walsh
and Sir Harry Gibbs attended. Somewhat mischievously, in his history, Fox said
of Barwick's attendance at either
the 1972 or 1973 conference:
What I do remember,
however, is that he came at cocktail hour ... and with accustomed cheerfulness. I see him now, leaning
over the table, on which was an extensive spread, to
reach towards a large plate of succulent prawns.
The practice of
inviting High Court judges has continued.
I shall conclude
this part of the paper by citing a passage from Sir Guy Green's opening remarks
as Lieutenant Governor and Chief
Justice of Tasmania at the 1993 conference in Hobart. Sir Guy said:
This conference has now
been held annually for over 20 years and it is interesting and perhaps
instructive to look back
at the way it has developed over that time.
Initially the conference
was regarded very warily by the judges of at least one Supreme Court who were
concerned that it
might turn out to be a sort of judges' trade union or might
assume a role which would interfere with their capacity to freely
develop their
own policies or even interfere with their independence. Indeed I can remember
that at the first conference
I attended which was in 1974 although a judge from
that court did attend he was at great pains to ensure that everyone understood
that he was not present as a participant but merely as an observer although I
also recall that his assumption of that role
did not have the effect of
inhibiting him from speaking on more topics and at greater length than anyone
else at the conference.
But those initial concerns about the conference soon
evaporated and as you know since then this conference has enjoyed the full
support of all the superior courts in Australia.
One significant
development in the organisation of the conference related to its venue. The
first conferences were held
in Canberra or Sydney and there was some resistance
to the proposal that it should be held anywhere else. Each time a more remote
venue was proposed the same sort of objections were raised. Hobart was too far
away and too wet, Perth was too far away
and too hot and Darwin was too far
away and too everything. Well in fact as you know successful well attended
conferences
were eventually held in all those places and I don't think anyone
worried at all about the distance, the weather or anything
else. Since then
this conference has become well established as an itinerant conference so much
so that this is the third
occasion upon which it has been held in Hobart and on
one occasion an excellent conference was held as far afield as New Zealand.
Other important
milestones in the history of the conference have included the adoption of the
practice of inviting at least
one outside speaker to address the conference,
the discussions which contributed to the establishment of the A.I.J.A. and most
contentious and serious of all the great debates which were had about the
burning issue of whether a black tie should be
worn at the conference dinner. Now at this conference another milestone will be reached when you will be discussing
whether
you should be taking the very significant step of establishing some
kind of national organisation of judges.
The steering committee in the 1980s and 1990s
In the late
1980s, I succeeded Peter Connolly as the Queensland Supreme Court representative
on the steering committee. Peter had,
I think, succeeded Sir Walter Campbell
who, as we have seen, was there from the beginning. He had gone to Government
House by the
time I was appointed to the court and regrettably, I never really
discussed the conference with either him or Peter. I received
no records
relating to previous conferences. I suspect that the anarchy to which I have
previously referred, and judicial concern
about institutionalizing anything
concerned with the judiciary, had led to a healthy suspicion of keeping
records. Each conference
was separate and was not to be taken as evidence of
the existence of any permanent governing institution or association. I adopted
a similar approach as, I suspect, did my colleagues.
When I joined the
committee it met twice a year, once in April to receive a report concerning the
previous conference and to plan
the next conference, and once during each
conference, to deal with emerging issues. The state of court financing in
those days
was evidenced by the fact that in order that I attend the April
meetings, the Chief Justice had to write to the Attorney General,
requesting
special funding. The same procedure was followed in order to obtain funds for
attendance by judges at the conference
itself. Steering committee meetings
were, at first, held at the Supreme Court in Melbourne, Melbourne being thought
to be more
convenient than Sydney for the Tasmanian and South Australian
delegates. At some stage we moved to Sydney where we met in the old
Chief
Justice's chambers and had lunch in the garden. As a junior judge, I was quite
taken by the privilege of being in such a
beautiful and historic setting. The Sydney venue was further enhanced by the hospitality of the New South Wales
representative,
Ken Carruthers and his wife Beverly. They raised beef cattle
and provided substantial lunches from their herd.
For most of my
time on the steering committee, Ian Sheppard was chairman. He had great
knowledge of the history of the conference,
having attended from a very early
stage. He regularly referred to decisions which had been made when Fox was
chairman or during
the time of his successor, Sir Guy Green, Chief Justice, and
then Governor of Tasmania. Sir Guy says that Sir Richard Blackburn
of the ACT
Supreme Court succeeded Fox and that he, Green, succeeded Blackburn. Fox
thinks that he never formally resigned, and
that Sheppard gradually took over
administrative responsibility. Two other members of the committee during my
time became Chief
Justice of Tasmania and then Governor, Bill Cox and Peter
Underwood.
After he left
the steering committee, Sir Guy continued his close association with the
conference. The other Chief Justice who,
at that time, had a particular interest
was Len King of South Australia. Ian Sheppard obviously had great respect for
both. Decisions
concerning the conference were often informed by their points
of view. Ian was a defender of the minimalist approach to the conference
which
had been taken since its inception. He was also acutely aware of the need to
engage the chief justices, including his own,
if the conference were to
survive, let alone prosper.
During his time
as chairman, we took the courageous decision to conduct the 1991 conference in New Zealand, the first of three which
have been held in that country. The decision was
courageous because of the cost involved and uncertainty as to how far
governments
would go in funding attendance. Even in the relatively well-funded
Federal Court of that day, Ian expected difficulty. He decided
to try to
convince his colleagues that they should travel business class rather than
first class, which was then, as now, the entitlement
of Federal Court judges. Perhaps surprisingly, he was successful, leading to a generally more flexible
approach to that question
in the Court, which approach has endured.
The New Zealand venture was successful, but two co-incidental events dominate my recollection
of it. The first Gulf War, sometimes
called the "Golf War", broke out whilst
we were travelling to New Zealand and was therefore prominent in the news and
people's thoughts. The other event was a large storm which hit Sydney on the first day of the conference, causing a tree to fall
on Ian Sheppard's house,
so that he and Joan had to go home before the conference had really started.
A later
conference in Hobart was dominated by the "rougher than usual handling" case
which had been publicized shortly
before the conference started. The Judge
involved, Derek Bollen of the South Australian Supreme Court, was also a member
of the
steering committee. The conference was marked by demonstrations outside
the hotel, calling for Derek's head. In the end, however,
the demonstrators merely
asked that they be allowed to present him with a suitably inscribed T-shirt
which he graciously accepted.
In connection with the same matter, a senior
Federal Court judge asked to speak to the steering committee and did so in a
highly
emotional way, at breakfast, urging us to speak out formally against violence
towards women. Perhaps we should have done so, but
we were, at that time, very
much influenced by the long-held view that the conference did not represent judges,
and nor did the
steering committee.
I greatly
enjoyed my time on the steering committee. The other courts seemed to appoint
representatives who were both good company
and able lawyers. I have mentioned
many of them. Other names which spring to mind are Clive Tadgell from Victoria,
Geoff Kennedy
from Western Australia and David Angel from the Northern
Territory. I should also mention John Doyle who, as you know, succeeded
Len
King as Chief Justice of South Australia. John was not on the steering
committee but he became very influential by dint of
writing to us after each
conference, urging us to increase the number of working sessions. We felt that
we had the balance right
but, as I have said, Ian Sheppard understood the need
to keep chief justices on side. I cannot now recall how we resolved this
challenge, but we must have done so successfully. John continues to be a great
supporter of the conference, the South Australian
judges still come, and other
Judges don't seem to have been deterred by the workload.
Finally, I note that one feature of
the conference has disappeared - the delivery of reports. The Chief Justice of
the High Court
used regularly to report on the activities of the Council of
Chief Justices or its predecessor, the Chief Justices Conference. Alternatively,
he would arrange for another Chief Justice to do so. Reports were also
received from the AIJA and the JCA. The appropriateness
of this practice will
appear when I discuss the achievements of this conference over the years.
The press
We are all familiar with the ways in which parts of the press fill their
columns and, perhaps, enhance their readership by attacking
the judiciary and
other so-called "tall poppies". We all recall the campaigns arising out of the
conferences in Florence
and Paris. I want to describe a campaign in The Australian
in December 2004 in advance of the 2005 conference in Darwin. However I do not
wish to be seen as participating in the currently
popular sport of "Australian-bashing". Let me tell you how events unfolded.
On
2 December 2004 The Australian ran a number of associated stories
concerning judicial leave, limited court sitting time in December-January,
judicial salaries,
conferences, including the forthcoming Darwin conference
and, for good measure, Jeff Shaw's attendance at conferences. He was described
as the "alleged drink-drive judge". What was a reader to make of this smorgasbord
of criticism? How were the various
disparate themes to be understood and
assessed?
The answer can
only be that there was no intention that readers develop informed understandings
of the issues. The intention must
have been to create a generally negative
view of the judiciary as a whole. However our present interest is in the
treatment of
the Darwin conference and this conference as an annual event. The
relevant article began as follows:
Top of the judicial
agenda during the legal go-slow over January is a restorative retreat in the
five-star Crowne Plaza
resort in Darwin.
At least 40 Federal and
Supreme Court Judges will convene in the hotel's "relaxed tropical garden
setting" to
discuss such topics as "Balancing Judicial Life" during the
taxpayer-funded shindig.
The meeting is one of an
array of conferences hosted in foreign and domestic destinations on offer
throughout the year -
but about which Australia's top judges remain secretive.
For some years
prior to 2004, judicial health had been a significant issue. It has continued
to be an issue and is an important
topic addressed at the National Judicial Orientation
Programme. It is difficult to understand why it was thought to be a subject
worthy of ridicule. Further, the suggestion that it was typical of the topics
to be discussed was simply wrong. The suggestion
of unbridled, sybaritic
self-indulgence was also absurd. However attractive Darwin may be at some
times during the year, nobody
would suggest that January is a good time to
visit. Indeed, in my time on the steering committee, it was accepted that Darwin would
attract smaller numbers than would other centres. The anticipated attendance
of "at least 40" suggests as much. The suggestion
that Judges were "secretive"
about conferences is also difficult to understand. The press had, for some years,
been using
freedom of information legislation to find out about such
expenditure.
There was then a
reference to the privately conducted Cortina conferences (which I confess to
having once attended). It was said
that Stephen Charles was to speak at a
forthcoming conference in Cortina, and that it would be a "lavish bash". There
was a clear implication that his attendance was government-funded, which may or
may not have been true. One might have thought
that the fact that a judge of
such standing was giving a paper would go some way towards establishing the
credibility of the conference,
but the journalists seem to have thought that
the fact that the conference was in Cortina was a basis for deriding those who
were
to participate.
The authors of
the article then returned to the Darwin conference, commenting on numbers attending
from the various courts and reporting
that the Federal Court's press officer
had unfortunately said something to the effect that recent press attention had
led to Federal
Court Judges being on a "short leash" and aware of such
attention.
The article
concluded with a summary of Jeff Shaw's activities. In his two years on the
bench he had attended the orientation programme,
the JCA Colloquium, also in
Darwin, and this conference in Auckland, all no doubt enjoyable, but hardly
surprising in a two year
period. It was then reported that after his car crash,
he had a "two week wandering Sino-Australian judicial tour of China",
but, "according to the court at his own expense". What was the relevance of two
weeks' travel at his own expense? Why
the reluctance to accept the court's assertion
to that effect? Indeed, why was Shaw mentioned at all other than to use his
unfortunate
position unfairly to denigrate the judiciary and this conference?
On
3 December 2004, The Australian editorial was headed "Judges must
justify summer of nick-off". Within the editorial, there were references to
judicial
efficiency, accountability, allegedly restrictive work practices at
the bar, the long vacation and this strange assertion:
If it needed any
prodding, the public's cynicism has been heightened by the exposure of the
cavalier attitude within parts
of the Bar to lodging tax returns. In line with
its guild traditions, both the judiciary and the Bar have not been noted for
disciplining poor performance or for pursuing efficiency with the same vigour
that applies to most of the rest of the workforce.
As a guild, the very
notions of managerial efficiency - including an organisation hierarchy with
bosses who give instructions
that others must follow - is alien to the culture
of collective and individual "independence". The flow-on of this
has been the
upheavals in the magistrates courts of Victoria, Queensland and now South Australia. Yet, anyone who publicly queries
the performance of individual judicial
officers exposes themselves to damages, awarded by other judicial officers, of
hundreds
of thousands of dollars. That's no way to promote public confidence
in the judicial system.
My understanding
is that from at least the mid-1980s, effective and efficient judicial
administration had been a dominant consideration
in all courts. Further, this
conference had made a significant contribution to improved administrative efficacy
and efficiency.
The meaning or relevance of the rest of the quotation is so
far beyond my understanding that I refrain from commenting on it.
The editorial
said, concerning the Darwin conference:
But there are many more
issues about the administration of justice that need scrutiny.
In July, The
Australian put the spotlight on legal conferences held in attractive
continental European locations, such as Florence, during the northern
hemisphere summer. These tended to be relaxed affairs and raised the question
of whether they needed to be held on the
other side of the world. For judges,
the costs were footed by taxpayers. For barristers, the costs were subsidised
by taxpayers,
given the judicial interpretation of tax laws on work-related
deductions. Quite an industry appears to have been established
around
organising such conferences.
The legal conference
industry, in turn, is facilitated by the practice of many of our higher courts
of simply shutting up
shop for a couple of weeks during winter. This practice
of closing the courts to suit the interests of legal producers, rather
than
consumers or taxpayers, extends to the lengthy summer legal "vacations" exposed
this week in The Australian.
...
Again, there's
conferences - a four-day gabfest at a Darwin resort to ponder issues such as
"Balancing Judicial Life"
and another at an Italian ski resort on medical
negligence.
The Weekend
Australian, in its 4-5 December edition, published a number of letters
supporting and opposing its editorial line. In particular, there were
letters
from Bob Debus, then New South Wales Attorney-General, Ron Sackville, the chair
of the JCA and Bruce Debelle, then chairman
of the steering committee. Not
surprisingly, they supported the judges in one way or another. There was also
one other letter,
not from a judge, supporting the judiciary and one letter,
more or less supportive of the editorial line. Only Sackville and Debelle
referred to the conference.
On
7 December, the editorial was headed "Legal nitpicking won't answer
judges' critics". It did not deal with the conference.
On 10 December, in the
Sydney Morning Herald, Richard Ackland came to our defence in a piece which
had the tone which is now typical of the spats between Murdoch and Fairfax
journalists. An extended version of the same article appeared in Justinian,
with a reference to photographs of Ian Callinan and Michael McHugh in Florence. It predicted that, "You can be sure some snappers
will also be in the bushes at
the judges' January tropical retreat in Darwin".
In my experience
the steering committee has always been concerned to avoid giving cause for any
perception that the conference is
a junket. However, in the end, there is no
way to avoid that charge unless the activity is conducted in a caravan park in
the less
attractive western suburbs of Sydney. These attacks and others have
not really focussed on the alleged luxury of our hotels. They
have rather
attacked the whole idea of a judicial conference, notwithstanding the almost
universal use in business and the professions
of such activities to deliver
professional development and networking opportunities. This focus leads me to
wonder whether such
attacks are part of a wider hostility towards the
judiciary, perhaps rooted in our not being influenced in our work by press
reports,
and not always facilitating journalists' preferred methods of
collecting news. One must also wonder whether the hostility to judicial
conferences reflects the justified perception that such activities strengthen
the position of the national judiciary, a matter
to which I now turn.
Achievements
In a paper
delivered in February last year at the ANU, I suggested that since the 1960s,
the judicial role in this country has been
substantially expanded and
strengthened. I argued that the decision that we should no longer automatically
follow decisions of
the House of Lords necessarily had that effect, as has the
increased frequency with which parties look to the Constitution for express or
implied rights and, above all, the enormous expansion in judicial review since
the 1970s. I suggested that increasingly,
the courts are seen to be resolving
disputes in which the exercise of legislative or executive power is challenged,
creating a
compelling perception that the courts are responsible for keeping the
various parliaments and executives within the law and within
their proper areas
of operation. I also suggested that this conference had contributed to the
strengthening of the judiciary by
fostering a national judicial identity and the
establishment of institutions which both evidence that national judicial
identity
and reinforce it. I should say a little more about how I believe the
conference has achieved those results.
First, simply by
its existence over 40 years, it has created a national judicial identity. The
rotation of the conference around
the capital cities has enabled judges to establish
personal and professional networks upon which we have been able to build,
particularly
as communications have improved. The conference has stressed the
national character of the judiciary by looking across the country
for its leadership. Most of those who have chaired the steering committee have been based in
centres other than Sydney or Melbourne.
The conference
has also been responsible for, or closely involved in the establishment of important
institutions which are now part
of the public face of the national judiciary. The
first such institution was the Australian Institute of Judicial Administration,
now the Australasian Institute of Judicial Administration. I have previously encountered
some scepticism when I have claimed that
the AIJA was an offspring of this
conference. Ian Sheppard always asserted as much, but I have since found other
authority for
the proposition. Sir Guy Green said so in the speech to which I
have already referred. McGarvie J of the Victorian Supreme Court
said as
much in a paper delivered to this conference in 1992. The paper was
subsequently published in the Journal of Judicial Administration
for 1991-1992. The relevant passage is at 259. Sir Anthony Mason made the same assertion in
65 ALJ at 78 as follows:
The Institute had its
genesis in the Australian Judges' Conference which has been held annually since
the early 1970s. That
Conference examines problems and topics of common
interest to judges throughout Australia. The Conference was instrumental in
bringing the Institute into existence as an independent body dedicated to the
examination and implementation of ways and
means of improving judicial
administration, using that expression in an extended sense so as to include
reform of substantive
procedures. The vision of the founders was that the
Institute would play a part in the objective reform of procedures in that
extended sense, and, in so doing, profit from a combination of independent
research and the knowledge of judges and lawyers
experienced in the way in
which courts work.
I should add
that, not surprisingly, Russell Fox was pre-eminent in the establishment of the
AIJA. He attributes a substantial role
to Dick McGarvie.
In his paper
McGarvie J, who was to become Governor of Victoria, raised the proposal advanced
at the first steering committee meeting,
that there be a permanent judicial
organization. He made two recommendations. The first was that by analogy to
the Australian Vice-Chancellors'
Committee, there should be an Australian
Courts Committee, having the function of identifying and disseminating the
views of judges.
McGarvie thought that the Chief Justices' Conference might
fulfil that role, but he professed little knowledge of how that body
operated. He proposed that all courts, not only the superior courts, be represented on
this committee, and that representation would
not necessarily be only by the
heads of those courts. Although this body did not emerge in quite the form
envisaged by McGarvie,
there was little doubt at the time that his paper
prompted the re-design of the Chief Justices' Conference as the Council of
Chief
Justices.
McGarvie also
suggested the establishment of the Australian Judicial Conference. Its
mandate, by analogy to a Canadian example,
was "to be constantly vigilant and
committed to assuring the preservation of a strong and independent judiciary". It was
not to be primarily concerned with education. He proposed that
membership of such a body be open to all judges and magistrates.
McGarvie
summarized the process by which the AIJA had been established and recommended
that a similar process be adopted in giving
effect to his current suggestions. In the end, the Australian Judicial Conference was established by the steering
committee of this
conference, most, perhaps all of the members of the committee
being the relevant incorporators. It soon changed its name to the
Judicial
Conference of Australia in order to avoid confusion with a horse-racing
organization.
Finally, the
discussion leading to the establishment of the National Judicial College really began at our first New Zealand conference
in 1991. The gestation period was
lengthy and involved other groups, but the product was worth the wait.
There can be
little doubt that each of these bodies is now an integral part of the public face
of the Australian judiciary. They
are all, at least in part, products of this
conference. As I have observed, they provide evidence of the existence of a
national
judiciary, strengthen it and provide the mechanisms by which it
operates.
The future
I do not propose to say anything more about the past. Some may be
disappointed that I have not covered more recent times in detail
or, perhaps,
at all. I have my reasons. First, I have only limited time. Secondly, long
lists of names and dates do not make for
good television. Thirdly, the nearer
we come to the present, the greater the number of judges who have their own
knowledge and
views. There is another reason. With the establishment of the
JCA and the working group which designed the NJCA, the role of the
conference in
establishing the architecture of the national judiciary, as first contemplated
by Fox, and developed by McGarvie
was fulfilled, at least for the moment. In
the slightly adapted words of the minutes of the first meeting of the steering
committee,
the conference's present and residual role is to provide occasions
for discussion of topics of interest to judges of the superior
courts. However
the changes in the jurisdiction of inferior courts might suggest that there are
few, if any, topics of interest
to us which are not also of interest to the judges
of those courts, especially the district and county courts. Why, then, do we
persist in conducting a conference which is exclusively for judges of the
superior courts of general jurisdiction?
In my view it is
about judicial leadership. The judges of the superior courts are inevitably
the leaders of the national judiciary.
Our larger numbers and wider
geographical distribution make us more visible than are the members of the High
Court. Further, the
High Court contributes only a small number of decisions to
our jurisprudence in any one year, important as that contribution is.
It hears
virtually no cases at first instance. Given our larger numbers, our
geographical distribution, our standing in the courts
hierarchy and our first
instance and appellate functions, we are able to lead in establishing and
enhancing high professional standards.
We are also well-placed to develop and
encourage consistency in the law. Indeed, it is our duty. The opportunity to
exchange views
at this annual conference assists in these leadership roles.
I suggest that
the future role of the conference might be:
To facilitate
discussion amongst the judges of the Australian superior courts of general
jurisdiction, in order to assist them in
providing judicial leadership in:
- the establishment and maintenance of high professional standards;
-
the independent performance of judicial duties;
-
innovation in court administration, case management, the law and
legal practice; and
-
supporting other bodies active in these areas, including the
Australasian Institute of Judicial Administration, the Judicial
Conference of
Australia, the National Judicial College of Australia and the Council of Chief
Justices of Australia and
New Zealand.
I do not mean to
propose any change in what the conference does. I am rather trying to
articulate the present role in a way which
may assist in the future. In my
view, the existence of a separate conference for superior court judges can only
be justified by
reference to our leadership role. Perhaps it is time that we put
more emphasis upon that role.
Finally, I
suggest that the conference might consider taking, as part of its role, the
identification and recognition, in a permanent
way, of those who have made or
make substantial contributions to the national judiciary. The people to whom I
have referred deserve
to be remembered.
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