'My Court Car is a Helicopter!'

Canadian Judicial Council
Inside the Administration of Justice: Toward a New Model of Court Administration
Victoria, British Columbia

Keynote Address by the Honourable A M North

31 January 2007

RTF version - 48.5 KB

Thank you for inviting me to speak here tonight on the system of self management under which the Federal Court of Australia operates.

The theme of this address is that self management promotes efficiency in the delivery of justice by aligning the power to manage with the responsibility for the outcome of that management. The alignment is particularly important in addressing the challenge of change.

Obviously, the organisational system is not the whole story. Without good people, judges and court staff, and without an adequate funding base, no system will deliver good outcomes.

The Federal Court of Australia has a reputation as a well managed, efficient and innovative court. This reputation is, in significant part, due to the system of self management.

To illustrate the point I have taken two examples of the way the Court has addressed change, namely, in the development of the native title jurisdiction, and in the introduction of the individual docket system. The examples are proffered as illustrations of the beneficial effect of self management, not as necessarily applicable in all jurisdictions.

Shortly I will explain the history of the introduction of the self management system in the Federal Court of Australia, and the way in which it operates. Then I will speak about the individual docket system. But let me begin with the development of the native title jurisdiction, the subject addressed in the title, “My Court car is a helicopter”.

In June 2000 I exchanged my Ford court car with a helicopter, and my courtroom in Melbourne for a tent in the desert in Western Australia. Let me explain.

For a little over 200 years after Captain Cook claimed Australia for the British in 1788, the accepted jurisprudence was that Australia was terra nullius – a country with no people. It took a startlingly long time until, in 1993, the High Court of Australia explained that the indigenous people of Australia had a developed system of governance and land ownership which was recognised by the common law. After a resulting political furore, the Federal Parliament legislated for a defined and limited native title. The jurisdiction to make a determination that native title exists was conferred on the Federal Court of Australia.

The jurisdiction presented unusual challenges. To gain recognition of native title indigenous applicants must show that they had at the time of white settlement and have maintained since a connection with their country in accordance with their laws or customs. Many applicant communities are remote from the major population centres and find the legal system entirely alien and threatening. Yet the evidence of the indigenous people is essential to the establishment of their applications.

The challenges to the Court were addressed by a committee of judges selected by the Chief Justice. The committee soon realised that the culturally appropriate way to conduct a trial of these issues was for the Court to go to the country of the people and listen to their evidence in their own environment. This approach was a radical departure from the way business had previously been done by the Court when hearings were held in modern courtrooms in the major cities.

As a result of the decision of the judges, the Court formed a native title unit which administers the over 600 native title applications and employed a remote hearing director and his staff who arrange the logistics for remote hearings. They find accommodation in outback areas for judges and staff, they arrange transport by four-wheel-drive, plane, or helicopter into remote regions for the Court, lawyers, and witnesses. And they arrange for mobile transcript facilities to be available for the hearing. Their work can be seen in some of these photographs of the second native title trial conducted by the Court and over which I presided just south of Broome in Western Australia.

In this setting a judge must be alert not only to the usual perils of the courtroom such as evasive witnesses and aggressive counsel, but also the dangers of wild camels intruding into the precincts of the court or unwelcome other guests visiting the courtroom.

Initiatives such as the arrangement of remote hearings of native title cases have lead to the reputation of the Federal Court of Australia as a leader in innovation. Innovation has been generated internally because the Court has the responsibility under self management to adjust to change and has the capacity to implement innovative solutions to address the challenges of change.

The scope of the change can be seen by comparing a photo taken in 1973 of the Court which I served as a law clerk with the adjustment made by the Federal Court in 2006 in the native title jurisdiction.

I should tell you something about the Court and about the system of self management before outlining the major innovation adopted by the Court.

As you know, Australia has a federal system. There is a federal hierarchy of courts whose judges are appointed on the advice of the Federal government. There is a separate hierarchy of State courts whose judges are appointed on the advice of State governments.

At the base of the Federal hierarchy is the Federal Magistrates’ Court. Next comes the Federal Court of Australia and the Family Court of Australia. And at the apex is the High Court of Australia, which is the equivalent of the Canadian and US Supreme Courts. The High Court of Australia is constituted by seven judges. Thus, it hears a limited number of cases each year. Generally only cases granted leave by the High Court of Australia will be heard by the Court.

The Federal Court of Australia was created in 1976 by the Federal government. It has 46 judges. The judges sit both at first instance and on appeal from single judges of the Court. Judges live in the major cities and hear first instance work in those cities. The appeal calendar occupies one month at a time four times a year. The appeal bench is comprised of three judges, and judges often travel interstate for appeal hearings. Because of the limited number of cases heard by the High Court of Australia, the appellate decisions of the Federal Court are usually the final stage in any litigation.

The jurisdiction of the Federal Court derives from over 150 Federal statutes and includes intellectual property, tax, human rights, labour law, native title, insolvency, corporations law, competition law and admiralty. The Court is the major administrative law forum for the challenge to Federal government decisions particularly in refugee and migration areas. It also exercises a general jurisdiction in commercial matters.

The Federal courts are all self-managed. The High Court of Australia has been self-managed since 1979. The Courts and Tribunals Administration Amendment Bill 1990 provided for self management in the Federal Court to commence from 1 January 1990. On the second reading of the Bill the Attorney-General explained the reasons as follows:^[1]

…
The Bill will ensure that the courts … are independent from day to day control by the Attorney-General’s Department and will provide them with the capacity to make decisions which they believe will best enhance their efficient and effective operation.
…
The provisions of this Bill will place with the courts … responsibility for their own administration and provide them with the capacity to operate as they see fit within the resources provided by the Parliament. (Emphasis added).

Mr Stephen Skehill wrote in 1994 when he was Secretary of the Attorney-General’s Department in relation to the 1989 reforms:^[2]

In our view, which of course not all may share, it was inconsistent with the very concept of an independent judiciary to have courts and judges so integrally dependent upon the Executive, rather than the Parliament, for the provision and deployment of facilities without which their substantive work simply could not be undertaken. We believed that it was inappropriate that someone such as I in my very executive-oriented position was able to deny a court adequate access to available staff or administrative funds.

Moreover, we felt that the fact that the court had no power over its administrative support meant that there was little systemic incentive to efficiency. The Departmental Executive felt loath to intervene in the administration of the court, and in many senses was not well qualified to do so in any event. For its part, the court had no responsibility or power to intervene for this purpose.

Further, the range of diverse matters handled within the Commonwealth Attorney-General’s Department, ranging from national security to censorship and from police to securities markets, meant that the distractions were too great – senior department management simply could not devote enough time to properly supporting the courts.

Finally, both the courts and the Department were at what we viewed as unacceptable financial risk – with one commingled funding pool, each was at risk of overspending by the other and the aggregation also meant that additional funding was harder to come by under a regime which requires certain percentage thresholds to be met before workloads increases will be matched by increased resources.

It was for all of these reasons that the Department took the initiative and proposed to the government that it should legislate for separate administration for the Federal Court, the Family Court and the Administrative Appeals Tribunal in a manner not dissimilar to that enjoyed for many years by the High Court.

The scheme of self management is now contained in the Federal Court of Australia Act 1976. It provides that the Chief Justice is responsible for managing the administrative affairs of the Court (s 18A). In the management of the administrative affairs of the Court the Chief Justice is assisted by the Registrar (s 18B). The Registrar is appointed by the Governor-General on the nomination of the Chief Justice (s 18C). The Chief Justice may give the Registrar directions regarding the exercise of his or her powers (s 18D(3)). Employment conditions applicable to public servants are made applicable to the staff of the Federal Court, and the Registrar is constituted as head of a statutory agency for the purposes of such public service legislation (s 18Q).

Although the Act vests management in the Chief Justice, he has formed a number of committees of judges to assist him in that task. There are committees for policy and planning, finance, assisted dispute resolution, admiralty, audit, bankruptcy, corporations, equality in the law, information technology, international development, judicial education, library, management of appeals, native title coordination, practice, rules, security, self-represented litigants and transcript.

The judges come from all over Australia twice a year for a full day meeting to discuss the affairs of the Court and make those decisions which are sufficiently important to warrant the endorsement of the whole of the Court. Then, every four or five years the Court meets to address issues of medium and long term strategic objectives. These strategy meetings have been facilitated by Mr Doug Stace an expert consultant in court administration from the Australian Graduate School of Management.

Through these mechanisms the Court has taken on the responsibility imposed by the system of self management of finding the most efficient methods of operation.

The Registrar, Mr Warwick Soden, is the Chief Executive Officer of the Court. He has the practical control of the administration of the Court. For instance, he is the formal employer of the 403 staff of the Court and is responsible for managing their pay and conditions. He is here at the conference and will be participating in a panel on Friday. The combined perspective which he and I can give provides a full picture of the operation of the Court.

The Chief Justice is obliged to give an annual report of the management of the administrative affairs of the Court to the Attorney-General (s 185).

There are limits on self management under the Australian federal self management model. The budget allocation which amounts to about $AUD81 for the Court is fixed by the Executive, although with significant input from the Court. Again, the Registrar will be able to explain how the relationship with the Executive works in this vital area.

Then, judicial remuneration is fixed by an independent statutory Tribunal. Its determinations are not binding on the government, but the government has generally adopted its recommendations in the past.

If judicial satisfaction is the measure of success then the Executive model in Australia is seriously wanting. There has been recent publicly expressed dissatisfaction from senior State Judges over the executive model.

At his public farewell from the Victorian Court of Appeal on 22 February 2006 Justice Bill Ormiston explained his reasons for retiring from the Court before the compulsory retiring as follows:^[3]

But the third burden, one that I find truly intolerable, is the constant interference by the bureaucracy. I shall not expand on this for I have mentioned one aspect already, and J.D. Phillips said all that could be said last year. It is enough to say that, whatever I might have continued to do, constant nagging irritations from the Department (and its representatives within the Court) and its ignorant meddling, though most “plans” have been recycled a number of times in my judicial career, thereby rarely containing little more than superficial window dressing, has become a constant distraction which I can no longer tolerate. I could go on and on, but the fate of Business Unit 19 (as once was the unhappy description of the Court) has left me in despair. So I will feel an enormous burden has been lifted from my shoulders when Friday night arrives. (Emphasis added).

His Honour referred to the remarks of Justice Phillips, another Court of Appeal judge, who said at his farewell on 17 March 2005:^[4]

As we all know, the independence of the judiciary is a cornerstone of our constitutional system, particularly the independence of this Court, which must from time to time tell the political arms what they can and cannot do according to law. As a court we will rarely, if ever, be popular with politicians, but while I have been sitting here, I have seen what appears to me to be some erosion of this Court's independence. One of the most public examples recently was the refusal of the Executive to accept the decision on remuneration handed down by the tribunal established by the Parliament for the very purpose of freeing both Parliament and the Executive from the invidiousness of the decision-making process over judicial salaries and so ensuring the independence of which I am speaking. Less well known was the refusal of earlier governments to allow that the Court's own chief executive officer be appointed by the Governor-in-Council and its insistence that that officer be appointed by and be ultimately answerable to the Department of Justice, which is what happened. That appears now, if I may say so, to have been but part of a movement towards this Court's becoming absorbed into that Department, and it is that to which I want to draw attention in particular; for such a movement must be reversed if this Court is to have, and to keep, its proper role under the constitution.

Of course this Court must be answerable for its expenditure of public moneys; so much is obvious, but that is a matter for Treasury, not the Department of Justice. This Court is not some part of the public service and it must never be seen as such. Established as a court of plenary jurisdiction and with supervisory jurisdiction over all other courts and tribunals, this Court is the third arm of government, co-equal in concept with Parliament and the Executive. Its role, inter alia, is to control and to limit those other arms according to law and to that end to stand between those other arms and the citizen. Hence the emphasis on the Court's independence, especially from the Executive.

Yet within the Department of Justice this Court is now identified and dealt with- would you believe!! - as "Business Unit 19" within a section labelled "courts and tribunals", a section which indiscriminately includes all three tiers of the court structure and VCAT. This Court is subject to direction on the raising of taxes in the form of court fees - in that these are prescribed by departmental regulation, even if a part of those fees is redirected to the Court by the department at its discretion. The other day the department used a regulation to prescribe a procedure in this Court, apparently in disregard, if not in defiance, of the convention that such matters are for rules of court. And perhaps most troubling of all: the judges' computers, which were provided by and through the department, are but part of the departmental network. I do not say that departmental officers ordinarily avail themselves of the access that that affords; one hopes the department has some controls in place. But access is possible, and that seems to me altogether inappropriate when the State, in one form or another, is the major litigant in this Court, and sometimes on matters of critical import to the wider community.

Nobody is suggesting that the Executive would ever seek to influence a judge's decision directly, otherwise than by argument in open court, but what has been happening is more insidious. What is evolving is a perception of the Court as some sort of unit or functionary within the Department of Justice, a perception which is inconsistent with this Court's fundamental role and underlying independence. (Emphasis added).

Then, only last month the New South Wales Bar Association called on the Premier to give State courts more power over the way they expend monies.^[5]

In a report for the Australia Institute of Judicial Administration published at the end of 2004,^[6] Alford, Gustavson, and Williams recommended a move away from the executive model in Australia partly in recognition of the need to align authority with responsibility. The report also makes a point which I would wish to adopt. In examining why, despite their criticisms the executive model works, the authors say ‘Good people make bad structures work. But good people can work even better with good structures.’^[7]

I want now to return to a key example of the working of self management in Federal Court. It concerns the introduction of the individual docket system in 1997.

Under this system, when a matter is filed in the Court it is immediately allocated to a judge. The allocation is made on an automatic basis, there is no human element in the distribution of cases. This preserves the integrity of the system. The docket judge then manages the case through the entire interlocutory process until that same judge conducts the hearing of the matter. In other words, the docket judge is responsible for the case from inception to disposition.

The idea for the docket system came from the Court itself, at the time when the Woolf Reforms in the United Kingdom highlighted the value of intensive case management as an efficient way of moving cases through the system and, in particular, as a means of controlling the build up of backlogs. There was no need to persuade bureaucrats from any government department that the docket system should be piloted. The Chief Justice and the Registrar engaged Maureen Solomon, a US expert in case management. She visited Australia and spoke with most judges to ascertain our requirements and assess the most desirable system. Then she made a presentation to all the judges outlining her recommendation that the Court should adopt the docket system. As you can imagine, there was a variety of reactions among the judges. At the next judges meeting the matter was discussed at length and it was determined that we pilot the system.

This process occurred shortly after I was appointed. It gave me an immediate sense of direct involvement and responsibility for the operation of the Court.

That sense has endured and grown. As case management became a function of the docket judges’ chambers rather than a function of the court registry many of us took time to train our staff in some of the techniques of case management. Each judge has a personal assistant and a legally trained law clerk or, as we call them, an associate. In my chambers I have trained my staff over the years to engage with practitioners over the phone in relation to interlocutory matters so that it is now rare for such matters to result in a hearing. The level of skill in such case management is considerable and reflects a radical change in the nature of work previously done by chambers staff.

In my view, and the view of a number of other judges whose staff operated similarly, these enhanced skills deserved recognition by a pay increase. The way I saw it was these staff members increased the efficiency of my docket significantly and I had a responsibility to them to ensure that they were rewarded appropriately and a responsibility to the Court to ensure that the skills were preserved for the benefit of the Court. The staff are, whilst personally chosen by the judge, formally employed by the Registrar. When the staff made a claim for a salary increase they made it to the Registrar. I actively supported the claim in direct discussions with the Registrar. As in many workplace issues there were widely differing views about the justification for the claim. How is one to deal with staff in chambers where such active case management had not yet been developed? Should they also receive the increase? The divergent views were reflected on the committee of judges charged with overseeing workplace issues. The Registrar had to navigate through some very heated and tense times over the issue. A number of judges expressed strong views to the Registrar. I did so myself. In response he devised a number of possible solutions and eventually one was found. The point is that this was an issue of real importance to the happy and fair working of chambers. And the judges had direct access to the person with power to resolve the question.

I recall my first encounter with Warwick Soden after my appointment. We were both attending a judicial conference in Shanghai. I told him that I had just visited the classical Chinese garden built in the Ming Dynasty in 1509 near Suzhou and that those gardens were built by a high level government servant who intended to take up the humble occupation of gardening in his retirement. Hence, the gardens were called The Gardens of the Humble Administrator. With a big smile Warwick said to me that he too was a humble administrator. The description has stuck but, we all know that those mandarins actually ruled China. I am sure there was a message in Warwick claiming to be a humble administrator.

The introduction of the docket system was a key change which radically affected the everyday life of Federal Court judges.

The disposition of docket cases is placed totally in the hands of the docket judge. Case management techniques to be used in docket cases are decided by the docket judge. Cases are listed according to the choice of the judge. This is a hugely satisfying arrangement. The control over ones working life is much greater than if hearing commitments are imposed by a listing officer. And there is a special sense of achievement which comes from early and efficient resolution of docket cases by use of case management techniques applied in one’s own chambers.

The change by which the docket system was adopted came at the initiative of the Court itself. Under self management the Court is responsible for ensuring that the system is efficient, and self management gives the Court freedom to choose the solutions to issues facing it.

I cannot overemphasise the impact on the quality of judicial life which the individual docket system has brought. At the same time it has made the Court responsive to the needs of delivering justice in contemporary conditions. The sense of involvement with the fate of the institution, and the knowledge that the Court has the capacity to adopt and implement good ideas directly, has lead to the development of many other innovative ideas. There have been pilot projects for an eCourt and the introduction of eFiling. Electronic courts have been used in complex cases. The Court is involved in extensive international outreach programs, and there is a project to professionalise and expand in house assisted dispute resolution services. The Court has also implemented a scheme to assist unrepresented litigants in the provision of legal representation.

As you can no doubt gather I am an enthusiast for the self management model, and look forward to elaborating on some of these additional innovations in the course of the panel session on Friday.