Court governance: The challenge of change Tin Bunjevac* This article argues that overworked and overburdened individual judges are not in an effective position to initiate meaningful and systematic improvements in the quality of the administration of justice without a supporting judicial institution that would assist the courts in achieving a greater degree of organisational quality, efficiency, responsiveness and integration. The article provides a comparative overview of the Australian, Irish, Canadian, English and Dutch models of court governance. It is argued that the proposed Judicial Council of Victoria should be modelled on the Dutch Judicial Council, because it is the only institution that has a broad and unambiguous mandate to improve the quality of the administration of justice, while at the same time expanding the independence, self-responsibility and accountability of the courts in the areas of judicial administration, management, human resources and finances. The author argues strongly against any models of governance that would maintain internal administrative separation between judges and court administrators in the courts. Ultimately, it is argued that fully integrated and autonomous court management – supported by a judicial council – would lead to greater institutional responsiveness of the courts and improvements in judicial management, innovation, case management and quality of justice. INTRODUCTION There is a general feeling that change is necessary to protect the authority and independence of the judiciary in Victoria. Seven years ago, the chief judges of the Victorian courts highlighted numerous demographic, environmental, economic, social, technological and political challenges that are impacting on the functioning of the courts.1 As a result of the emerging societal pressures and demands upon the courts, the law itself has become much more complex. The increase in the uses of modern technology, such as listening devices, has added significantly to the complexity and length of criminal trials.2 The common law of negligence has become “much more complex and less clear”, while a multitude of new statutes and modern forensic and medical procedures have “substantially increased the burden on the courts”.3 More and more often the courts are being called upon to decide on controversial issues that the Parliament has been “too busy, too supine or too fearful to define”.4 * The author is a member of the Victorian Bar and the International Association for Court Administration (IACA). The author would like to thank Justice Robert Nicholson AO, a professor at Melbourne Law School, and Mr John Griffin PSM, Executive Director, Courts (Department of Justice) for their helpful comments on an earlier draft of this article. The views expressed in the article are those of the author, except where stated otherwise. 1 Supreme Court of Victoria, Courts Strategic Directions Document (2004), p 52. The identified new challenges include the changes in the economic environment, the absence of community awareness, the existence of language barriers, the emergence of entrepreneurial litigation, the increased specialisation of practitioners, the convergence of international laws, as well as the emergence of new medical procedures and forensic technologies in criminal cases. 2 Supreme Court of Victoria, n 1, p 52. See also State of Victoria, New Directions for the Victorian Justice System 2004-2014: The Attorney-General’s Justice Statement (2004), p 46. An example of the changing nature of the courts’ work was the increase in the average length of higher criminal court trials from five days in 1982 to 14 days in 2002. 3 Supreme Court of Victoria, n 1, p 52. It is pointed out that a case which would have involved a simple breach of contract 30 years ago, today typically involves the consideration of numerous complex statutes, rules of common law and equity and even issues of foreign law. 4 Malleson K, The New Judiciary - The Effects of Expansion and Activism (Ashgate, 1999), pp 20 and 32. Malleson refers to a trend of leaving controversial social issues including immigration, pornography, religion, euthanasia, abortion and human rights to the courts. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac At the same time, litigants, prosecutors, government agencies, the media and other stakeholders have come to expect that their matters should be handled in a more “client-friendly” manner, with greater precision, cost-effectiveness and transparency, in plain and understandable language (preferably online) and with greater legal uniformity across all jurisdictions. Above all, litigants are demanding that the courts deliver judgments quickly so that they can get on with their lives, “even if this means that the reasoning is not perfect”.5 All of these new developments have created significant additional workload, stresses and pressures on judicial officers and staff, making it extremely difficult for judges to keep abreast of the developments in the law.6 Most alarmingly, these new demands, burdens and expectations carry with them hitherto unappreciated and unforeseen threats to judicial integrity and authority. If courts and judges are unable to organise their internal processes and deliver a judgment within a reasonable period of time, litigants will seek alternative ways of settling their disputes, whether by private arbitration or some other non-state-sanctioned means.7 After all, these demands are based on basic moral arguments and well-established legal and human rights principles, which state that litigants are entitled to legal certainty and that parties and suspects should not be left in uncertainty about their lives forever.8 The underlying theme that is emerging is that the traditional judicial quality attributes – such as impartial, well-reasoned and well-written judgments – are alone inadequate to respond to the challenges of a changing social environment. The new quality expectations demand that the courts have greater operational, financial and managerial expertise, organisational quality, unity and full institutional independence. Greater institutional independence and self-responsibility of the judiciary also require better systems integration, client orientation, organisational transparency, streamlining of procedures, judicial involvement in administration, as well as better functional envelopment of judges and staff in all organisational structures of the courts. As Professor Philip Langbroek points out, there are difficult choices to be made.9 Should judges restrict themselves to deciding their cases, leaving organisational and institutional issues to “others”; or are they going to participate in, or even lead, the change processes? How can judges reconcile the conflicting values within the judiciary? On the one hand, they are independent and autonomous professionals; on the other hand, the informal hierarchy remains very strong. Should judges maintain their traditional administrative passivity or should they more actively engage with other judges and supporting staff? Last, but not least, how can judges embrace the inevitability of change and still maintain those values of the judiciary that constitute their identity and authority? Against the above background, the main body of this article will critically analyse the existing models of court administration, in an attempt to identify a model that would allow the courts to maintain their traditional judicial values and remain independent and institutionally “responsive”. For, 5 Eradus C, “The Power of Innovation” in Fabri M and Langbroek P (eds), The Challenge of Change for Judicial Systems (IOS Press, 2003), p 88. 6 See Supreme Court of Victoria, n 1, p 52. 7 For a graphic illustration of this problem see “Non-Muslims Turning to Sharia Courts to Resolve Civil Disputes”, The Times Online (21 July 2009), http://business.timesonline.co.uk/tol/business/law/article6721158.ece viewed 9 March 2011. The United Kingdom-based Muslim Arbitration Tribunal states that 5% of its cases involve non-Muslims who are using the tribunal because “they are less cumbersome and more informal than the English legal system”. The Times reported that the Muslim Arbitration Tribunal was planning to triple the number of its courts by setting up in 10 new British cities by the end of the year. See also Langbroek P, “Two Cases of Changing the Judiciary and the Judicial Administration: The Netherlands and Guatemala” (Paper presented at the World Bank Conference on Empowerment Through Law and Justice in St Petersburg, Russia, 8-11 July 2001) p 10. 8 Fabri M and Langbroek P, Delay in Judicial Proceedings: A Preliminary Enquiry into the Relation Between the Domains of the Reasonable Time Requirement of Art 6(1) ECHR and their Consequences for Judges and Judicial Administration in the Civil, Criminal and Administrative Justice Chains (Council of Europe, European Commission for the Efficiency of Justice (CEPEJ), 2003), pp 3-4. See also, for example, s 25(2)(c) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) which requires that a person charged with a criminal offence is to be tried without an unreasonable delay. 9 Langbroek, n 7, p 14. 202 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change as Nonet and Selznick point out in their essays on jurisprudence and the sociology of organisations,10 only a responsive institution “retains a grasp on what is essential to its integrity while also taking account of emerging forces in its environment”.11 The first part of the article discusses the legal, organisational and social challenges facing the Victorian courts and offers a conceptual framework for evaluating the alternative models of court administration. It is argued that an effective response to the identified challenges requires, not only a commitment to safeguarding the independence of the judiciary, but also wider consideration of the quality and appropriateness of judicial, legal and administrative procedures in the courts and their organisational capacity to systematically improve the client orientation and quality of the administration of justice.12 The article then contrasts the “executive” model of court administration in Victoria with the South Australian, Australian federal, Irish, English, Canadian and Dutch models. The perceived best characteristics of each of these models are identified and a possible solution is proposed. It is argued that a new judicial institution should be established – a Judicial Council of Victoria – with a strong mandate to assist the courts achieve greater procedural, legal and organisational excellence. This body must be sufficiently funded and equipped to perform the role of an institutional “buffer” between the courts and the Executive, while at the same time expanding the self-responsibility of each of the court tiers in the areas of finance, administration and human resources. The Dutch concept of an integrated court governing board is explored, because it would separate the policy-making and management functions in the courts and remove the dual management structure that exists in the more traditional models, such as the Victorian one. Ultimately, it is argued that fully integrated and autonomous court management – supported by a judicial council – would lead to greater institutional responsiveness of the courts, and to improvements in judicial management, efficiency and quality of justice. THE CHALLENGE OF RESPONSIVENESS Deficiencies in institutional design In this part of the article it is argued that the principal reasons for the loss of responsiveness, legitimacy and authority of the court system lie in the structural deficiencies of court governance and the absence of more effective and integrated organisational arrangements that are characteristic of other large organisations. According to Alford, Gustavson and Williams, there is an inherent structural deficiency in the existing Victorian model of court governance that can be attributed to the specific institutional design of the courts. They point to the existence of an internal organisational separation between the administrative and judicial functions, which can be found in most Australian State courts.13 In Victoria, New South Wales, Queensland, Western Australia and Tasmania, the court administration, human resources, budgeting and infrastructure are controlled by the Executive. Judicial officers separately maintain their responsibility for judicial management, case management, adjudication and procedure.14 In this so-called “executive model” of court governance, the judiciary 10 See generally, Nonet P and Selznick P, Toward Responsive Law: Law and Society in Transition (4th ed, Transaction Publishers, 2008), p 77. 11 Nonet and Selznick, n 10, p 77. See also Denham S, “The Diamond in a Democracy: An Independent, Accountable Judiciary” (Paper presented at the Annual Conference to the Australasian Institute of Judicial Administration, Darwin, 14-16 July 2000). Justice Denham points out that even the archetypical notions of “democracy”, “rule of law”, “accountability” and “independence” have evolved in response to the changes occurring in society – “they are not set in 1701AD”. 12 See generally, Voermans W and Albers P, Councils for the Judiciary in EU Countries (CEPEJ, 2003), pp 100-102. 13 Alford J, Gustavson R and Williams P, The Governance of Australia’s Courts: A Managerial Perspective (Australian Institute for Judicial Administration, 2004). 14 Supreme Court of Victoria, n 1, p 71. The judicial management procedures include the management and assignment of the judges, the planning and organisation of sittings and lists, the allocation of courtrooms, as well as the immediate direction of administrative staff carrying out those functions. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 203 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac does not have a direct formal relationship with the court administration, although, in practice, authority over staff, infrastructure and court operations is shared to some extent between the Executive and the judiciary.15 This far-reaching organisational separation leads to a “misalignment” of policy objectives in the areas of court administration, judicial management and case management.16 Professional court administrators and their departmental superiors do not have sufficient understanding of, or access to, some of the critical aspects of judicial operations. As a result, court administrators often are not in an effective position to facilitate the most efficient choices among competing court priorities.17 Similarly, because of the dual administrative arrangement, judges are lacking the appropriate level of managerial aptitude and the analytical infrastructure to undertake data collection, research, analysis and planning, which are required in order to contemplate new and improved judicial administrative arrangements and case management strategies.18 In other words, judges are not in a position to fully understand the operations of the organisations in which they control the most critical “outputs”. This raises the question of whether, under the executive model, the judicial management, case management and related organisational policies can be further improved to ensure that justice is administered in the most efficient, innovative and responsive manner.19 The internal organisational divide is also potentially responsible for the overall loss of authority and accountability of courts as public institutions. The courts are responsible and accountable to the public for the delivery of a certain standard of performance, service and quality. However, neither judges nor professional administrators have the required degree of control over the core operational processes of their organisations to be fully responsible or accountable for the outcomes. In this operational environment the courts do not have even the basic degree of financial, administrative and budgetary discretion that modern organisations enjoy.20 Basic decisions about operational management and activity funding often require approvals from departmental officers who are embedded in an external bureaucracy that is physically separated from the courts and has its own internal organisational priorities. According to Alford et al, such lack of financial control and budgetary discretion significantly affects the business efficacy of the courts and may not be “optimal” for judicial independence.21 As a result, there are very significant organisational obstacles to the strategic long-term planning of the courts’ activities.22 Judicial individuality and administrative passivity Apart from the structural deficiencies in organisational design, former Victorian Supreme Court Justice Richard McGarvie and Professor Ian Scott famously identified the entrenched intellectual tradition of judicial individualism and administrative passivity that “weighed on the courts” as institutions and prevented them from achieving a more substantial degree of efficiency and administrative competence: 15 Alford et al, n 13, p 83. 16 Alford et al, n 13, p 85. The authors call this a misalignment between authority and responsibility. 17 Baar C et al, Alternative Models of Court Administration (Canadian Judicial Council, 2006), p 93, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1352223 viewed 9 March 2011. See also Church T and Sallmann P, Governing Australia’s Courts (Australian Institute of Judicial Administration, 1991), p 25. 18 Baar et al, n 17, p 15. 19 Voermans and Albers, n 12, p 100. 20 Alford et al, n 13, p 85. See also a compelling analysis of this issue by Smith T, “Court Governance and the Executive Model” (Paper presented at The Judicial Conference of Australia Colloquium 2006, Hyatt Hotel Canberra 6-8 October 2006), http://www.jca.asn.au/attachments/2006_smithpaper1.doc viewed 9 March 2011. 21 Alford et al, n 13, pp 85-86. The authors note that judicial independence is not undermined in practice. 22 Baar et al, n 17, p 92. 204 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change Judges are prone to confuse judicial “independence” … with judicial “individualism,” which frankly can be most destructive (it can put “collective” independence at risk). I have seen many courts rendered ineffective by judges who would just not accept or would not enthusiastically implement ideas designed to improve court performance.23 Professor Henry Mintzberg’s seminal work on organisational design explains the consequences of judicial individuality from the perspective of modern organisational theory. Based on his taxonomy of organisational structures, courts can be classified as “professional bureaucracies”. According to Mintzberg, a professional bureaucracy is an organisational form that relies on persons who have been through a process of intensive professional training that turns them into specialists who maintain control over the organisation’s core productivity and quality assurance processes.24 In this professional setting, according to Mintzberg, it can be difficult to develop more standardised and effective operative systems, because these professionals tend to rely on a “complex and stable environment, non-regulating and non-sophisticated technical system”.25 Since most courts were established before the 19th century, judges have developed a specific professional attitude – a highly individualised working culture – where professional status and individual autonomy are regarded as the highest virtues.26 This is particularly true of common law legal systems where judges predominantly practice as sole practitioners (barristers) for a considerable period of time before coming to the bench. However, as Langbroek points out, while judicial individualism may be regarded as a strong professional attribute in terms of the constitutional demand for judicial independence, when it comes to preparing courts – large and complex organisations – to adapt themselves to societal changes, it can be regarded as a serious weakness.27 Associate Professor Gar Yein Ng completed a dissertation that focused on this issue and noted that judicial individualism became particularly pronounced when the courts and judges started to experience a steady rise in caseloads and increased complexity in the law.28 Judges realised that they were unable to accommodate the additional workload within their individualised working routines and divided organisational frameworks.29 Despite this, they showed very little inclination to systematically coordinate their work activities with other judges and professional court staff. According to Ng, there was simply too much “individuality and loyalty to the smallest unit within the organisation”.30 At first judges argued that they were not accountable for the effectiveness and efficiency of their organisation. Later they argued that they also were not accountable for the legal and social uncertainty which was caused by that situation.31 While solid reasons and explanations have been advanced in support of those arguments, it was clear that the courts as institutions failed to perform in accordance with their basic constitutional and human rights mandate.32 Ng concludes that the traditional mechanisms of judicial accountability – including the public nature of hearings, publication of judgments, possibility of appeal and scrutiny by the media – have all proved inadequate to respond to the modern demands on the courts and the judiciary.33 23 Scott I, “The Future of Judicial Administration” in Responsibilities for the Administration of Justice (AIJA, 1985), p 82. Also cited with approval by McGarvie R, “Judicial Responsibility for the Operation of the Court System” (1989) 63 ALJ 79. 24 Mintzberg H, Structure in Fives: Designing Effective Organisations (Prentice-Hall, 1983), p 189, as cited extensively in Ng G, “Quality of Judicial Organisation and Checks and Balances” (PhD thesis, University of Utrecht, Holland, 14 March 2007) p 4. 25 Mintzberg H, “Structure in 5’s: A Synthesis of the Research on Organization Design” (1980) 26 Management Science 334, as cited in Ng, n 24, p 4. 26 Langbroek, n 7, p 10. 27 Langbroek, n 7, p 10. 28 Ng, n 24, p 24. 29 Ng, n 24, p 24. 30 Ng, n 24, p 30. 31 Ng, n 24, p 30. 32 Ng, n 24, p 30. 33 Ng, n 24, p 30. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 205 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac According to an expert study of Councils for the Judiciary in EU Countries conducted by the European Commission for the Efficiency of Justice (CEPEJ), the problems identified above raise two distinct types of questions. First, in relation to the nature and appropriateness of judicial procedures in courts, are the existing internal arrangements still appropriate to ensure that justice is administered in the most effective, responsive and efficient manner?34 Professor Wim Voermans and Dr Pim Albers argue that the traditional judicial administrative style “is lacking on different fronts to provide an appropriate answer to the challenges of the increased case loads and the much larger staff within the new-style courts”.35 According to this view, the traditional judicial administrative arrangements are inadequate because they are predominantly based on the individual professionalism of judges and the collective court presidency in the distribution and execution of their work.36 Thus, not only is there an inherent structural and operational divide, there is also a significant functional and interpersonal divide between the judicial and non-judicial officers in courts.37 This greatly reduces the opportunities for the creation of deeper delegation patterns, workflow integration and meaningful professional support for judges in their legal work.38 Voermans and Albers conclude that new, more integrated administrative arrangements are required to give the courts more internal possibilities – particularly in financial and personnel matters – to drive the essential processes more effectively and efficiently from intake to judgment.39 The second broad series of questions identified by Voermans and Albers relates to the judiciary’s capacity to innovate and effect future improvements in the quality of the administration of justice in a more demanding social, technological and legal environment: These new quality requirements call for efficient streamlining of the working processes within the courts, judicial precision during procedures, permanent training of judges and auxiliary staff, uniformity in applying substantive and procedural law, correct treatment, avoidance of long waiting periods, guarantees concerning the speed of settlement, etc.40 How can judges respond to the increasing complexity of the law, clients’ new demands, large backlogs of cases, politicians and the media, and remain polite, responsive, transparent, user-friendly, and still continue to contemplate improvements in the quality of the administration of justice? Voermans and Albers, as well as Langbroek, separately conclude that the traditional judicial quality attributes – while remaining essential – are no longer sufficient to meet the new quality expectations of the changing social environment.41 There are numerous external factors that can influence the performance of individual judges, ranging from the size of the budget, changes in society, new legislation, as well as the internal structure and capacity of courts as organisations.42 It is argued that, in order to meet the new challenges, judges require the systematic support of a robust judicial organisation – a council for 34 Voermans and Albers, n 12, p 100. 35 Voermans and Albers, n 12, p 100. 36 Voermans and Albers, n 12, p 100. 37 Voermans and Albers, n 12, p 100. See also Albers P et al, Geïntegreerde rechtbanken: het vervolg, evaluatierapport herziening rechterlijke organisatie (onderdeel 2), IVA, (1994), pp 72-73 and pp 90-92 (“Integrated Courts part II”). 38 Albers et al, n 37, pp 72-73. See also Voermans and Albers, n 12, p 100. 39 Voermans and Albers, n 12, p 101 and the related footnote 147, which refers to Albers et al, n 37, pp 90-91. In particular, the authors point out that the “new-style courts are now continually pushed in the direction of a professional organization characterised by a more vertical and hierarchical drive and more central command of the administrative processes”. They contrast these organisational processes with the traditional judicial arrangements in the executive model, which operate like organizations of professionals, with strong horizontal administrative arrangements that are aimed at reaching a consensus between judges on all aspects of court administration. 40 Voermans and Albers, n 12, p 102. 41 Langbroek, n 7, p 11; see also Voermans and Albers, n 12, pp 101-102. 42 Albers P, Performance Indicators and Evaluation for Judges and Courts at http://www.coe.int/t/dghl/cooperation/cepej/ events/onenparle/MoscowPA250507_en.pdf viewed 9 March 2011. 206 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change the judiciary – which can contribute to the expansion of the judiciary’s own organisational capacity, and promote the efficiency, client orientation and quality of courts as important public organisations.43 A council for the judiciary According to Professor Gio ten Berge, a council for the judiciary can provide the necessary professional, technical and logistical support for courts to become modern, thriving and, above all, responsive and learning organisations.44 He highlights a number of areas in which the quality of the administration of justice can be systematically improved through the introduction of better organisational policies and professional support for the courts.45 First, better organisational policies can lead to more systematic approaches to case management, as well as procedural and organisational accessibility. Second, there is the provision of professional and legal support, such as advanced legal research, which can be provided and coordinated systematically, to assist not only in the development of case law in complex areas, but also to assist judges at the hearing and judgment stages of individual cases. Next, the council can provide the necessary financial, technical and administrative expertise to assist individual courts improve their working methods or to implement quality policies for judges and staff at the case management level (perhaps even at the decision-making level).46 In addition, there is the need to achieve greater uniformity of law across the court tiers and different jurisdictions, through the systematic use and expansion of ICT platforms to improve the coordination and customisation of jurisprudence. To these one can add the need to develop and maintain more systematic approaches to judicial training, education and professional development for judges, including the recruitment of professional legal staff who would assume a much more prominent role in the courts. Finally, from a public service point of view, the courts need to develop uniform policies on customer service, deliver information professionally, transparently and efficiently, and consider implementing quality systems that would place greater focus on the needs of clients.47 All of these professional, technical and organisational measures can greatly improve the quality of justice and decisions made by individual judges. This takes us back to the original question of identifying the institutional and governance solutions that would address the accountability problems of efficiency, quality, responsiveness and transparency in courts. Based on the above discussion it can be concluded that the most serious obstacle to achieving greater responsiveness and institutional accountability of the courts lies in the “faulty” institutional design that is inherent in the executive model of governance. However, no less important is the absence of more robust organisational, technical and professional supporting mechanisms, which has prevented the courts – and individual judges – from achieving a more substantial degree of organisational transparency, efficiency and integration. The following section of this article looks at some of the most important features of a number of Australian and overseas models of court governance in an attempt to identify a model that would be capable of responding to the challenges identified above. It is argued that the Australian federal courts autonomous model of governance (with some internal modifications) would provide the most appropriate answer to the internal structural barrier inherent in the executive model. The discussion will then concentrate on the composition, competencies and characteristics of the proposed Victorian Judicial Council. 43 Voermans and Albers, n 12, p 102; Langbroek, n 7, pp 11-14. 44 ten Berge J, “Contouren van een kwaliteitsbeleid voor de rechtspraak” in Langbroek P, Lahuis K and ten Berge J (eds) Kwaliteit van rechtspraak op de weegschaal (WEJ Tjeenk Willink and GJ Wiarda Instituut, 1998), pp 21-44 as cited and elaborated extensively in Ng, n 24, p 30. 45 ten Berge, n 44, pp 21-44 as cited in Ng, n 24, p 30. 46 ten Berge, n 44, pp 21-44 as cited in Ng, n 24, p 30. 47 See generally Ng, n 24, p 30. See also Albers P, “Quality of Courts and the Judiciary: European Experiences and Global Developments” in Thijs N and Staes P (eds) Quality Development in the Field of Justice (EIPA, 2008), Ch 1. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 207 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac MODELS OF COURT GOVERNANCE Federal courts autonomous model One of the most important features of the federal courts model of governance is that it has a fully integrated and autonomous management structure under the control of the chief judges.48 As a result, this arrangement is better known as the “chief justice autonomous model”.49 According to Stephen Skehill, the federal government decided to introduce the autonomous model because it was felt that there was “little systemic incentive to efficiency in the traditional executive model” and because the Commonwealth Attorney-General was often distracted by a number of other portfolios.50 The principal advantage of this model is that is enables the courts to integrate and strategically develop their own internal administrative, financial and human resources capabilities, allowing them to make decisions that they believe will result in the most efficient and effective operations for each court.51 Furthermore, from a judicial management perspective, the integration of the administrative, financial and human resources operations has the potential to lead to significant improvements in the quality of the administration of justice, organisational excellence and judicial efficiency.52 The courts have the opportunity to become better equipped, in an organisational sense, to contemplate new or more innovative judicial management arrangements and case management strategies.53 Finally, the autonomous model removes the internal administrative divisions and creates a more unified organisation with undivided staff allegiances.54 However, as some authors have pointed out, there is a perceived lack of unity of approach or capacity for system-wide improvements in the fields of recruitment, judicial education and organisational unity. According to Church and Sallmann, the existing arrangement discourages judicial officers and administrators of the different courts from taking a broader perspective of court problems, possibly resulting in costly and inefficient duplication of resources and infrastructure.55 Arguably, the absence of a coordinating body becomes even more pronounced if the Attorney-General’s strategic role has been scaled back. Thus, while the courts may be able to achieve greater operational 48 It should be noted that this model was initially introduced in respect of the High Court of Australia in 1979 and extended further in 1989 in respect of the Federal Court and the Family Court (the “federal courts”). In the High Court, the court as a whole is responsible for the management and administration of its own affairs, under the so-called “collegiate autonomous model”. 49 Baar et al, n 17, p 105. 50 Skehill S, “Comment on Court Governance” (1994) 4 JJA 28. Mr Skehill was an Assistant Secretary at the Commonwealth Attorney-General’s Department. 51 Black M, “The Federal Court of Australia: The First 30 Years – A Survey on the Occasion of Two Anniversaries” (2007) MULR 37. For a detailed account of the Federal Court’s unique approach to strategic planning and integration of the judicial and non-judicial operations see Soden W, “The Application of International Court Excellence Framework within the Federal Court of Australia with a Special Look at Strategic Planning to Achieve Excellence” (Paper presented at Asia-Pacific Courts Conference, Swisshotel, Singapore 4-6 October 2010). 52 Forde M, “What Model of Governance Would Optimise the Expeditious Delivery of Justice” (LLM Thesis, Griffith University, 2000) p 74. Chief Judge Forde notes that the Federal Court under the leadership of Chief Justice Black had been very successful in this regard. See also North M, “Inside the Administration of Justice: Toward a New Model of Court Administration” (Victoria, British Columbia, 31 January 2007). Justice North describes the operation of the individual docket system and the significant expansion of the administrative and legal supporting functions performed by legal officers and registrars in the Federal Court. 53 Forde, n 52, p 75. See also Sage C, Wright T et al, Case Management Reform: A Study of the Federal Courts Individual Docket System (Law and Justice Foundation of New South Wales, 2002). For example, the Federal Court introduced the highly efficient individual docketing system 12 years before any other Australian court (the Family Court), and it was the first court in the world to establish a national videoconferencing network. Other unique procedural innovations include the specialist panels and appellate benches and procedures for sequential and concurrent expert evidence. 54 Black, n 51, Ch XII: “A well-evolved judicial administration will bring judges into an appropriate working relationship with professional administrators. This is precisely what the Federal Court model of self-administration has done.” See also Sage et al, n 53 and Soden, n 51. 55 Church and Sallmann, n 17, pp 68-71. See also generally Millar P and Baar C, Judicial Administration in Canada (The Institute of Public Administration of Canada, McGill-Queen’s University Press, 1981), p 67. 208 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change efficiencies as individual organisational units, their systemic capacity to adapt to future challenges as part of a unified system of the administration of justice may be diminished without a coordinating body that takes on the functions of system-wide strategy development, coordination and organisational support. In this context it is important to note that the federal courts are specialist jurisdictions that do not necessarily require harmonised organisational policies or system-wide implementation as do courts of general jurisdiction in a State “system” of the administration of justice.56 Perhaps the strongest criticism of the chief justice autonomous model is that the principal organisational responsibility for both policy-making and administration permanently resides with the chief judges. According to Church and Sallmann, this arrangement, at least in theory, has the potential to “retard” the development of administrative capacity and involvement of other judicial officers of the court.57 Furthermore, according to Hill, this management structure does not sufficiently separate “policy-making” and “administration” from “ownership” of the organisation and does not adhere to modern institutional governance principles, which require a greater degree of horizontality at the policy-making (ie the board) level.58 Alford et al illustrate this problem by discussing a hypothetical example of an incompetent, inefficient or even “tyrannical” chief judge who is able to dominate a court’s affairs in a manner contrary to the ideal of judicial independence.59 Finally, there are also difficulties associated with the courts exercising full financial responsibility and accountability while at the same time having to deal directly with the Executive. Thus, while it is argued that financial, planning and budgetary competence leads to improvements in the efficiency and self-responsibility of the courts,60 occasional budget overruns can create the impression that judicial officers are ill-equipped to manage large public institutions, particularly the finances.61 As a result, any instances of proven managerial or financial incompetence would have an extremely negative effect on public confidence in the judiciary. In the following sections it is argued that many of these problems would be avoided through the creation of a judicial council, which would serve as an institutional buffer and provide an added layer of financial support, technical expertise and organisational competence for the courts. South Australian Judicial Council model The South Australian Judicial Council model is characterised by a combination of semi-autonomous management, at the level of the individual courts, and remote management and coordination by the Judicial Council. The South Australian Judicial Council is an instrumentality of the Crown, which is 56 Skehill, n 50, p 29. The author argues that the federal courts’ jurisdictions do not reflect “true complementarity”. The three courts are “so different that there are legitimately separate expectations of each … they are best left to assume responsibility and accountability for those expectations without being reliant upon each other”. 57 Church and Sallmann, n 17, p 68. See also McGarvie R, “The Foundations of Judicial Independence in a Modern Democracy” (1991) 1 JJA 3, p 24. Justice McGarvie highlights the risk of the development of an informal “kitchen cabinet”. See generally also Friesen E, Gallas E and Gallas N, Managing the Courts (Bobbs-Merrill, 1971), p 140. 58 See generally Hill L, “Constitutional and Managerial Principles of Judicial Court Governance: Implementation in the State of Victoria” (LLM Thesis, University of Melbourne, June 1995), Ch IV (esp pp 94-96). Hill also refers to the corporate governance principles espoused by Professor Frederick Hilmer and the Cadbury Committee Code of Best Practice. See also Church and Sallmann, n 17, p 68. 59 Alford et al, n 13, p 74. Reference is made to then Chief Justice Sir Garfield Barwick’s dominant role in the High Court of Australia which led to the changes to the High Court’s internal governance model. See also Andrews N, “Vinegar Free? Sir Garfield Barwick’s Recipe of Judicial Salad” (1996) 3 Canberra Law Review 165 at 189. According to Andrews, the Chief Justice had used the power to assign hearings to ensure results that he personally approved. 60 Sallmann P, “Extracts on Courts’ Governance from Going to Court, a Discussion Paper on Civil Justice in Victoria by Peter A Sallmann and Richard T Wright, Department of Justice, Victoria, April 2000” (Paper presented at the 18th AIJA Annual Conference, Darwin, 14-16 July 2000), p 10; http://www.aija.org.au/2000ac/SALLMANN.RTF viewed 9 March 2011. The analysis suggests that financial self-responsibility can be both an advantage as well as a disadvantage. 61 “Federal Magistrates’ Court Uncovers $5m Budget Black Hole”, The Australian (6 March 2009). The article notes that the Federal Magistrates Court had been using the MYOB accounting program, which is designed for a small business and not an organisation with a budget of more than $55 million. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 209 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac permanently governed by the heads of each of the court tiers and administered by the Administrator.62 Its principal legislative task is to “provide the participating courts with the administrative facilities and services necessary for the proper administration of justice”.63 In this model, the State’s Chief Justice wields the power of veto over any proposals of the Judicial Council.64 One of the most important characteristics of the South Australian Judicial Council is that it acts as an institutional “buffer” between the individual courts and the Executive. The Judicial Council receives and distributes funding in the form of a one-line budget to each of the courts out of funds appropriated by Parliament.65 The lines of the Attorney-General’s direct political responsibility for the administration of the courts are therefore restricted to budgeting and remote supervision in the form of annual and ad-hoc reporting requirements. As a consequence it can be argued that the traditional tensions between the political system and the judicial organisation have been slightly reduced from an institutional perspective, with a corresponding increase in judicial self-responsibility. Nevertheless, the South Australian Judicial Council, in some respects, resembles the AttorneyGeneral’s department because it employs all of the courts’ administrative staff and centrally operates many day-to-day administrative, financial and managerial tasks for the courts – the very services that had been provided previously by the Department of Justice. Therefore, when compared to the federal courts, the South Australian courts appear to be much less integrated internally – particularly in financial and personnel matters – although they do retain a degree of operational autonomy in terms of their own administrative and judicial arrangements.66 It also appears that the Judicial Council’s focus is heavily placed on the administrative side of the courts’ operations, which can affect their efficiency and lead to a “competition for resources”, particularly if different courts have different needs and priorities that require an immediate and unanimous response by the Judicial Council.67 Much less attention is paid to the broader contributions which could be made by the Judicial Council to the courts’ organisational excellence, or the possibilities for improvements in the quality of judicial administration, legal research, professional legal support, education and quality, which were identified above. There are other problems associated with this model. The first is that the Chief Justice regularly appears before Parliament to answer questions about the Judicial Council’s activities. This may be seen to be inconsistent with the principle of judicial independence.68 Second, from an outside perspective, the South Australian Judicial Council appears to be somewhat of an inward-looking 62 Courts Administration Act 1993 (SA), s 6. 63 Courts Administration Act 1993 (SA), s 10. 64 Courts Administration Act 1993 (SA), s 9(3) provides that a decision of the Judicial Council is one which is supported by the votes of the Chief Justice and one other member of the Judicial Council. 65 Courts Administration Act 1993 (SA), s 24. See also Doyle J (Chief Justice SA), “Court Governance and Judicial independence – the South Australian Approach” (Paper presented at Judicial Conference of Australia – Colloquium 2006) pp 10-13; http://www.jca.asn.au/attachments/2006-Doyle_paper_2006.doc viewed 9 March 2011. See also King L (former Chief Justice of South Australia) quoted in Hill, n 58, p 50. The courts receive one lump sum from the appropriation, however the Judicial Council may transfer the funds and resources from one court to another. See King L, “A Judiciary-based State Courts Administration – the South Australian Experience” (1993) 3 JJA 133 at 139. 66 Courts Administration Act 1993 (SA), s 10(2). See King, n 65 at 139. The then Chief Justice King noted that the advantages of decentralised decision-making should not be forgotten. 67 Courts Administration Act 1993 (SA), s 10(3) and (4). The Judicial Council has the power to establish key administrative policies and guidelines to be observed by the participating courts in the exercise of their administrative responsibilities. For a more recent analysis of the South Australian model, see Semple D (in conjunction with the Federal Attorney-General’s Department), Striking The Right Balance: Future Governance Options for Federal Family Law Courts in Australia (2008), p 25 and pp 48-51. The authors of the review considered and rejected the South Australian model (at pp 48-51). They also pointed out that the changing needs and priorities of the different courts that were sharing the administrative resources in the family law jurisdiction had in practice resulted in a “competition for general and judicial support services” (at p 25). 68 See King, n 65 at 140. Chief Justice King noted that if issues of court administration policy came under review as part of the consideration of the budget estimates, there should be no objection to the Chief Justice attending an Estimates Committee. See also the Courts Administration Act 1993 (SA), s 29, which provides that “a member of the Council, or the Administrator, must at the request of a parliamentary committee attend before the committee to answer questions”. 210 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change institution.69 Glanfield, Church and Sallmann criticise the fact that the chiefs of the court tiers have practically unlimited and exclusive “ownership” of the Judicial Council.70 They also note that there is no community voice in this organisational set-up.71 This potentially leads to a loss of perspective and may diminish the capacity and responsibility of other judicial officers to be involved in the management affairs of the court system.72 There are also no provisions in the legislation requiring the Judicial Council to take into account the government’s justice policy priorities or to coordinate services with other justice agencies in order to improve the quality of the administration of justice and maximise available resources. Arguably, the absence of formal institutional mechanisms for coordination and systems integration could have a negative impact on the availability, efficiency and accessibility of public services in the justice system. This concern in some respects echoes the argument about the lack of a community voice in the Judicial Council. However, from a systems-integration point of view, the focus is on the policy-making and organisational competencies of the judicial organisation to systematically engage with external agencies and improve processes in the areas of client orientation, judicial management, case management, as well as legal quality.73 From an outside perspective, it is difficult to assess the extent to which the South Australian courts have actually benefited from the potential economies of scale that may be realised in smaller jurisdictions, at least according to organisational theory.74 Recent statistics published in the Report on Government Services in Court Administration do not support the conclusion that South Australian courts are more efficient, accessible or effective than their interstate counterparts.75 An earlier comparative study of the productivity data from the District Courts of South Australia, Queensland and New South Wales concluded that the South Australian results “do not reflect a more efficient system”.76 It has been pointed out that the administrative involvement of judges leads to an increase in responsibility and interest in the managerial and administrative affairs of the courts.77 However, an increase in judicial responsibility and interest in court administration does not automatically translate into improvements in the organisational capacity, quality, responsiveness or effectiveness of a court system. To achieve some of these aims in a larger jurisdiction (such as Victoria) would likely require a different conception of the council’s organisational competence, greater self-responsibility of individual courts for human and financial resources, as well as more robust technical, professional and managerial support to assist the judges in their efforts at improving the courts’ internal capabilities and achieving organisational excellence. As noted earlier, the entire judicial organisation must be equipped 69 Glanfield L, “Governing the Courts – Issues of Governance Beyond Structure” (Paper presented at 18th AIJA Annual Conference, Darwin, 14-16 July 2000), pp 2-3. Glanfield argues that the South Australian Judicial Council may be in the best interests of the chief judges but that is not necessarily in the best interests of the community. 70 Glanfield, n 69, pp 2-3. See also Church and Sallmann, n 17, p 9. 71 Glanfield, n 69, 2-3. See also Church and Sallmann, n 17, p 9. 72 Glanfield, n 69, 2-3. See also Church and Sallmann, n 17, p 9. 73 King, n 65 at 141. Chief Justice King states that protocols have been agreed between the Judicial Council and the Attorney-General about regular consultations with the Department as to matters arising in the administration of the courts. 74 See Alford et al, n 13, pp 62-63 and pp 66-67. The authors refer to the seminal work of Peters T and Waterman R, In Search of Excellence: Lessons from America’s Best-run Companies (Harper and Row, 1982), who found that the “1,000-staff rule of thumb” is the optimum size of a unit of administration in modern organisational theory. Beyond that number, Alford et al point out, there are limits to economies of scale (“diseconomies of scale”), which, according to the authors, means that joint administration of staff and infrastructure may be appropriate in the smaller jurisdictions, such as South Australia (with around 800 staff), but not the larger ones, such as Victoria (with around 2,000 staff in 2010) (at p 66). 75 See the Commonwealth of Australia, Report on Government Services (2011), Ch 7. A cross-jurisdictional comparison of the backlog indicators, clearance rates and cost per finalisation does not support the conclusion that the South Australian courts are more efficient or effective then their interstate counterparts. Notably, South Australian courts also had some of the largest backlogs of all State courts in Australia both in civil and criminal matters ([7.28] and [7.31]). 76 Forde, n 52, pp 60-61. Chief Judge Forde analysed a range of quantitative and qualitative data and concluded that “the level of output in South Australia appears to be less productive than Queensland”. According to this study, the South Australian District Court was also the most expensive District Court in which to litigate (at p 56). 77 Alford et al, n 13, pp 91-92. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 211 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac – in an organisational as well as a cultural sense – to contemplate new and more effective procedures and case management strategies to meet the challenges of a changing social environment. From the legislative provisions it is also not immediately clear that the South Australian autonomy model meets the systems integration, client orientation and responsiveness criteria; although, in practice, the South Australian courts are known to have introduced many innovative programs and strategies aimed at increasing the client orientation of the courts and utilising modern technologies.78 It is argued below that the Irish Courts Service provides the answers to some of the perceived deficiencies of the South Australian Judicial Council, particularly in the areas of client orientation and systems integration. Majority partnership model (Ireland) The Irish partnership model presents an option that retains a significant role for the Executive in court administration, but also significantly increases the direct influence of the judiciary.79 In this model, judicial members constitute the voting majority on the board of an independent courts administration authority, which also includes representatives from the government and other relevant stakeholders.80 As a result, the judiciary and other justice stakeholders are much more broadly involved in the full range of managerial and administrative issues impacting upon the courts. Prior to the Courts Service Act 1998 (Irl) coming into operation, the governance arrangements in the Irish court system were based on a British model that existed before 1922.81 The early British governance arrangements were kept primarily for continuity reasons without any analysis having been made of the type of administrative infrastructure required for the courts in the independent Irish Republic.82 Following substantial increases in the volume of cases coming before all tiers of the court system in the 1990s, the Irish government sought advice from the Working Group on a Courts Commission, chaired by Justice Susan Denham of the Supreme Court in October 1995 (the Denham Group).83 The Denham Group conducted a comprehensive review of the court system and found that the court administration had been operated by eight separate organisations that were not adequately interconnected so as to enable efficient administrative decision-making.84 In addition, according to the Denham Group, there were practically no quality standards for assessing the achievements of judges and courts and there was very little interest in instructing or training judges and court personnel. Above all, “the courts had far too little thought for litigants”.85 The Irish government accepted the Denham Group’s main recommendation that an independent administrative agency be established in order to centralise the financial and management administration of the courts in a more unified system.86 The institutional design of the new statutory 78 See eg the South Australian Courts Administration Authority, Annual Report 2009-2010, which outlines many innovative programs and initiatives including a Community Relations Committee which sponsors a Community Reference Group comprising representatives from 14 community-based organisations and associations. 79 Baar C et al, n 17, p 99. 80 Courts Service Act 1998 (Irl), s 11, which provides for the structure and membership of the board of the Courts Service. 81 Working Group on a Courts Commission (Ireland), First Report: Management and Financing of the Courts (April 1996), http://www.courts.ie/Courts.ie/Library3.nsf/(WebFiles)/E33B888C196A85A980256DA6003459DA/$FILE/courts1.pdf viewed 9 March 2011 (Denham Group First Report). 82 Denham Group First Report, n 81, pp 18-24. 83 Finnegan J, Management of the Courts: The Irish Experience (2007), p 2, http://www.courdecassation.fr/IMG/File/pdf_2007/ 10-05-2007/10-05-2007_finnegan_eng.pdf viewed 9 March 2011. 84 Denham Group First Report, n 81, pp 18-24. The court administrative staff were employed under different service agreements which precluded transfers between the different court tiers. Many court officers had poorly defined responsibility roles and operated in a “bifurcated managerial system”. As a result, the Denham Group concluded (at p 36): “The Working Group are of the opinion that the current administrative system is one of the causes of the critical situation in the courts”. 85 See Voermans and Albers, n 12, p 32. See also Denham Group First Report, n 81, pp 35-36. The Denham Group identified a long list of fundamental problems in the courts management system. 86 Courts Service Act 1998 (Irl), s 22. See Denham Group First Report, n 81, p 45. 212 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change corporation, the Courts Service, was largely inspired by the South Australian Judicial Council.87 However, unlike the South Australian Judicial Council, the Irish Courts Service has an extensive governing board, which is made up of nine judicial members and eight justice system stakeholders.88 According to CEPEJ, the inclusion of the external members on the board of the Courts Service has introduced an element of external perspective and social accountability into the organisation.89 The aims formulated for the Courts Service by the Denham Group primarily reflect the need for greater administrative consolidation and business efficiency on the administrative side of the courts’ business.90 These include “improved access to justice”, “delivery of an efficient and effective system of justice”, “elimination of undue delay”, “clear focus on objectives”, “streamlining of organisational structures”, “clearly defined lines of authority and responsibility”, as well as the “coordination of management systems through an integration of planning, financial management and human resources management”.91 There are other important features of this model. For example, the involvement of judges on the board of the Courts Service makes it possible to formulate and pursue more coordinated strategies and objectives for the courts.92 As a result, according to the Denham Group, more clarity exists about the sharing of powers and responsibilities between the individual courts and the Courts Service, especially when compared to the previous situation.93 Furthermore, the Courts Service is much better integrated into the overall system of the administration of justice. To achieve this aim, the Courts Service is required to have regard to “any policy or objective of the Government or a Minister of the Government insofar as it may affect or relate to the functions of the Service”.94 However, in some respects, the centralised structure of the Irish Courts Service invokes the same grounds of criticism as the executive model and the South Australian model. In particular, the court staff and the associated administrative and financial services are supplied and controlled by an external service organisation with its own separate bureaucracy that centrally manages the court administration.95 According to CEPEJ, the Courts Service has many administrative powers that can “easily affect” the judicial work in the courts.96 Consequently, there is insufficient integration of the administrative, financial, managerial and judicial operations in the courts themselves. The judges, registrars, senior clerks and masters continue to operate separately according to their traditional administrative arrangements under the authority of the president of the court to which they belong.97 There essentially remain two separate administrative chains of command in the courts. Therefore, it can be argued that neither judges nor professional administrators have the required degree of control 87 Working Group on a Courts Commission, Third Report: Towards the Courts Service (November 1996), p 10, http://www.courts.ie/Courts.ie/Library3.nsf/(WebFiles)/309888D60FC0961280256DA60038E3CB/$FILE/courts3.pdf viewed 9 March 2011 (Denham Group Third Report). 88 Courts Service Act 1998 (Irl), s 11. The other members include the Minister for Justice (or nominee), a Chief Executive officer, a member of the courts’ administrative and legal staff, a member representing “consumers of the services provided by the courts”, two members of the legal profession, a member designated by trade unions and a member who has relevant knowledge and experience in commerce, finance or administration. 89 Voermans and Albers, n 12, p 110. 90 Denham Group First Report, n 81, p 45. 91 Denham Group First Report, n 81, p 45. 92 Baar C et al, n 17, p 99. 93 Denham Group First Report, n 81, p 45. See also Voermans and Albers, n 12, p 37. 94 Courts Service Act 1998 (Irl), s 13. 95 Courts Service Act 1998 (Irl), s 20. To perform these functions, the Courts Service has been given specific legislative powers to acquire land, enter into contracts, arrange staff training and education, establish arrangements for consultation with users, make proposals to the Minister of Justice in relation to the distribution of jurisdiction among the courts, as well as to engage with external consultants in connection with the performance of its functions (s 6). 96 Voermans and Albers, n 12, p 37. According to CEPEJ, “management and substantial judicial power quickly get into each others’ way”. 97 Courts (Supplemental Provisions) Act 1961 (Irl), Sch 8. See also Voermans and Albers, n 12, pp 36-37. See also Denham Group Third Report, n 87, p 27. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 213 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac over the immediate business environment in their courts so as to be fully responsible or accountable for the outcomes – the core criticism of the executive model. The catalysts for organisational change in the Irish court system are best understood in the context of the particular historical, institutional and economic circumstances in which they developed. First, the Courts Service was designed to take over the administrative functions and responsibilities that had been previously supplied by eight separate and disconnected organisations ranging from the Department of Justice to the County Councils and Dublin Corporation.98 From this historical and institutional perspective, it is not difficult to understand why Ireland opted for a centralised administrative agency to manage its courts, staff and administration. Second, the institutional reforms were instituted during a period of unparalleled economic prosperity. According to Finnegan, there were practically “no budgetary constraints on fulfilling the support requirements of the judiciary”.99 As a consequence, it is perhaps not surprising to learn that the Courts Service has accomplished most of its organisational objectives to the extent that “the effects of seventy years of under-investment in the courts system have been remedied”.100 Third, the initial operational successes of the Courts Service highlight the importance of continuously improving the client orientation and systems integration of the courts. As Raymond and McCutcheon point out, there was a: fundamental shift in the “philosophy” of the courts system, requiring it to take account of the concepts of quality, service and competitiveness more associated heretofore with the private sector … there can be no doubt of a move from the “courts system” to “courts service”.101 It is clear that the client-oriented organisational philosophy has fostered more business-like organisational arrangements and a greater degree of integration of the court administration into the broader framework of the administration of justice. It has also been noted that the aims formulated by the Denham Group for the Courts Service place a strong emphasis on the financial and administrative side of the courts’ business, such as reducing delays and improving access to the courts. There appear to be no corresponding legislative expectations about any wider contributions to future improvements in the quality of justice, through greater integration of the judges and support staff, and more substantial contributions by the Courts Service to the legal, organisational and learning processes of individual courts – certainly not in the sense identified above by Professor ten Berge. Furthermore, according to CEPEJ, even the promotion of judicial independence is missing from the list of aims formulated by the Denham Group.102 Finally, it is remarkable that the Courts Service has 17 representatives at the board level. This is rather surprising because the Denham reports do not contain any “intrinsic detailed motivation” regarding the 98 Denham Group First Report, n 81, pp 24 and 35. According to the Denham Group, “there was no clear reporting structure with regular channels of communication between the various constituencies”. 99 Finnegan, n 83, p 7. The current the size of the Courts Service (with approximately 1,000 employees) is comparable to the South Australian Courts Administration Authority (with approximately 800 employees). See also Courts Service News, Volume 12, Issue 4, December 2010, p 12. However, due to announced budget cuts, the number of staff working for the Irish Courts Service will be further reduced to 864 by 2014. 100 Finnegan, n 83, p 5: “The building stock has been transformed with imaginative refurbishment of architecturally important buildings and the construction of new court houses. Modern technology is very widely if not yet universally available. The court administrative offices have been modernised and are now vastly more efficient. There is a unified structure across the court offices. The widespread introduction of IT across the court offices has made available statistics which were not previously available and which aid in the formation of policy and enable the board to monitor the implementation of policy.” 101 Raymond B and McCutcheon P, The Irish Legal System (4th ed, Butterworths, 2001), p 156; cited without reference in Finnegan, n 83, p 4. Nevertheless, the waiting times have again started to build up in many courts, partly as a result of the severe budget constraints. See the Courts Service Annual Report 2009, pp 72-76. For example, ordinary appeals in the Supreme Court take almost three years from filing to disposition, while summary criminal matters in the District Courts take between 12 months and 24 months in regional areas, and up to three years in Dublin, from filing to disposition. 102 Voermans and Albers, n 12, p 38. 214 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change scope of the board, other than the need to have external stakeholder representation.103 For CEPEJ, the extensive representative composition of the Irish Courts Service means that it is, in principle, “susceptible to politicisation and syndicalism”.104 Minority partnership model (England) The court administration in England and Wales is managed by Her Majesty’s Courts Service (HMCS), which is an administrative agency of the Ministry of Justice.105 Although HMCS is an agency of the Executive, it has substantial judicial participation on its governing board, thereby increasing the direct influence and participation of the judiciary in court administration. Under the terms of a partnership agreement, the Lord Chancellor and the Lord Chief Justice agreed in April 2008 to place the leadership and broad direction of HMCS in the hands of a governing board, without intervening in its day-to-day operational decision-making.106 According to the terms of the partnership agreement, the board must endeavour to reach agreement by consensus. Where the board cannot reach agreement by consensus, it must refer the issue to the Lord Chancellor and the Lord Chief justice for a decision.107 All HMCS staff owe a joint duty to the Lord Chancellor and the Lord Chief Justice for the efficient and effective operation of the courts.108 The judicial members of the board are accountable only to the Lord Chief Justice and may only be removed subject to a process agreed between the Lord Chancellor and the Lord Chief Justice.109 Notably, however, a judicial member’s removal from the board will not impact on their judicial appointment.110 The objectives of HMCS include “achievement of best value for money” and “continuous improvement of performance and efficiency across all aspects of the courts’ work, having regard to the contribution the judiciary can appropriately make”.111 It should also be noted that HMCS has adopted a less centralised administrative structure than the Irish Courts Service, allowing for many of the court initiatives to be taken locally by region-focused “Court Boards”, which nonetheless operate within a national framework of standards and strategy direction.112 There are detailed provisions in the partnership agreement, which provide for the finances, resource allocation, performance standards, audits, as well as inspections of HMCS. The Lord Chancellor and the Lord Chief Justice must jointly agree on the budgets and plans, which set out how the budget allocations will be spent. According to the terms of the agreement, no change may be made to the allocations to the HMCS or its budgets or plans other than in accordance with a detailed 103 Finnegan, n 83, pp 36-37. In Ireland, the Judges, Registrars, Senior Clerks and Masters separately retain their traditional management functions under the authority of the president of the court to which they belong. See Courts (Supplemental Provisions) Act 1961 (Irl), Sch 8. See also Denham Group Third Report, n 87, p 27. 104 Voermans and Albers, n 12, p 110. 105 Baar C et al, n 17, p 58. The United Kingdom executive model was introduced by the Courts Act 2003 (UK). It does not operate in the newly established Supreme Court of the United Kingdom, which has an autonomous model of governance. 106 Her Majesty’s Court Service Framework Document (April 2008), pp 6-7 (HMCS Framework Document). The governing board of HMCS comprises of an independent non-executive Chair, three representatives of the judiciary, a representative of the Ministry of Justice, the Chief Executive, three other executives and two non-executives. The judicial members include the Senior Presiding Judge for England and Wales and two other members of the judiciary nominated by the Lord Chief Justice. 107 HMCS Framework Document, n 106, p 8. 108 HMCS Framework Document, n 106, p 8. 109 HMCS Framework Document, n 106, p 8. 110 HMCS Framework Document, n 106, p 8. 111 HMCS Framework Document, n 106, p 3. 112 Courts Act 2003 (UK), s 5 and Sch 1. The Court Boards are not intended to manage the courts themselves, but rather to provide a forum for local issues, to review operations and performance in the local courts and to make recommendations about how they should be run and how service can be improved. Membership of each regional Courts Board consists of a district judge, two magistrates, two people with knowledge or experience of the courts and two local community representatives. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 215 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac arrangement set out in the agreement itself. This potentially removes one of the traditional obstacles to achieving greater efficiency in court administration in the executive model.113 One of the most important achievements of HMCS in England and Wales was to consolidate the courts’ administrative services, which previously consisted of 43 independent Magistrates’ Courts’ Committees and an over-centralised courts service of the Crown Courts.114 According to Sir Robin Auld’s Review of the Criminal Courts, there were substantial differences in procedures, practices, management and culture between the various courts that were found to be “confusing, divisive and inefficient”.115 The new institutional arrangement is intended to retain only the best attributes of these organisations in order to deliver “decentralised management and local accountability within a national framework”.116 The partnership agreement implicitly recognises that “the courts are by their nature a shared responsibility between the judiciary and government”.117 As a result, a significant effort has been made to provide collaboration with a range of justice organisations, agencies and the legal fraternity, in order to improve the service delivery for local communities.118 According to the terms of the agreement, the board of HMCS is required to consult and work with the judiciary and others in the criminal, family and civil justice systems “where necessary”, and with the concurrence of the Department of Justice “where appropriate”.119 As a result, the new organisational structure has the potential to achieve improvements in the areas of policy consistency, administrative unity as well as systems integration. However, there are at least two significant disadvantages of this model. First, there remains a sharp division of responsibilities and loyalties between the judges, the court staff and the HMCS bureaucracy, which is characteristic of all the executive models.120 The courts are still fully dependent on an external service organisation to effect changes in their immediate business environment. Second, the lines of ministerial involvement in court administration are much more intrusive in the English minority partnership model than in the Irish majority partnership model. Under the Courts Act 2003 (UK), the Lord Chancellor is ultimately responsible for the courts and the justice system, while under the partnership agreement he is also entitled to make “whatever decision he considers appropriate” in the event of a disagreement with the Lord Chief Justice.121 What is remarkable is that the Lord Chancellor’s power of intervention is not invoked by reference to a defined category of misconduct of 113 See HMCS Framework Document, n 106, p 14. See also Lord Philips of Matravers, The Select Committee on the Constitution: Evidence (9 July 2008), p 29 (Questions 10 and 11). There is a very detailed process under which the Lord Chief Justice takes part in the budgeting process at all the vital stages: “First of all, before a bid is made in each expenditure round to tell the Lord Chancellor how much the Court Service needs; when the Ministry then receives its allowance there will be further discussion as to how much of this is going to go to the Court Service, and once that is decided there will be further discussion as to what it is going to be spent on. Once the Court Service has been allocated its budget it cannot have any taken away without going through the whole process again…This is in reality a kind of ring-fencing.” 114 Courts Act 2003 (UK), s 6, which abolished the Magistrates’ Courts’ Committees. See also Lord Justice Auld’s Review of the Criminal Courts (2001), pp 78 and 92. Until the mid-20th century there was a very fragmented system throughout the country of about 1,000 Commissions of the Peace of various sizes. In 1949 the Magistrates’ Courts Committees were established to administer petty sessions areas based on the administrative counties and large boroughs Commissions. 115 Justice for All, A review of the Criminal Justice System presented to Parliament by the Secretary of State for the Home Department, the Lord Chancellor and the Attorney General (2002), p 148 (Justice for All). 116 Justice for All, n 115, p 148. 117 Lord Chief Justice Philips, The Lord Chief Justice’s Review of the Operation of the Courts (2008), pp 7 and 16. 118 HMCS Framework Document, n 106, p 3. 119 HMCS Framework Document, n 106, p 21. 120 See Ng G, “Quality Management in the Justice System in England and Wales” in Langbroek P (ed), Quality Management in Courts and in the Judicial Organisations in 8 Council of Europe Member States (CEPEJ, Strasbourg, 2010), p 41: “It appears the policy makers have attempted to create a sort of railway track to access to justice. The two lines of a track represent the two lines of the judicial system: the Independent Judiciary and HMCS … Whilst this is very logical in principle, given that these two organisations do not appear to have a commonality of purpose and are trying to hammer out the details of an evolving relationship based on quality management and financial restraint, it means that these two lines may not be going in the same direction, and it may mean a bumpy ride for those who choose to use these services.” 121 HMCS Framework Document, n 106, p 28. 216 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change the HMCS (eg serious financial irregularities or decisions that are manifestly contrary to the law), but by reference to a disagreement with the Lord Chief Justice in relation to (any) operational matters of the HMCS. Consequently, there appear to be few constraints on the Lord Chancellor’s exercise of his ultimate discretion if the Executive decided to oppose any of the board’s initiatives. Against this background, it remains to be seen whether the minority partnership model that operates in England and Wales will in practice prove to be as workable as the majority partnership model that operates in Ireland. It is argued below that an intermediary institution which operates at arm’s length from the Executive may be better placed to provide an appropriate balance between judicial autonomy and continuing ministerial responsibility. Canadian executive/guardian model In the so-called executive/guardian model, an executive agency that operates at arm’s length from the Minister has primary responsibility for the day-to-day planning and operations of the courts. The courts have the (“guardian”) authority and responsibility to intervene in the administrative operations where they believe that it is necessary or appropriate to ensure effective and efficient provision of administrative services in the courts. According to the Canadian Judicial Council, a variation of this model operates in the Canadian federal courts, where the court administration is managed by a central Courts Administration Service under the authority of a Chief Administrator.122 The principal objectives of the Courts Administration Service are to “facilitate coordination and cooperation among the Canadian Federal Courts and to ensure effective and efficient provision of administrative services to those courts”.123 The Chief Administrator is a Governor-in-Council appointee who is accountable to Parliament through an annual report to be tabled by the Minister of Justice.124 The Chief Administrator also acts as the Chief Executive Officer of the Courts Administration Service and has supervision over its staff. In exercising his duties under the Courts Administration Service Act SC 2002 c 8 (Can), the Chief Administrator has all the powers necessary for the overall effective and efficient management and administration of the Courts Administration Service, including court facilities, libraries, corporate services and human resources.125 The Courts Administration Service has been set up to operate at arm’s length from the government.126 The Courts Administration Service Act makes provision for the roles and responsibilities of the chief justices in the management of the courts.127 Specifically, the Act provides that the chief justices of the participating courts are responsible for the judicial functions of their courts, including the direction and supervision over court sittings and the assignment of judicial duties.128 In the exercise of their responsibilities, the chief justices of any of the four participating federal courts may issue binding directions in writing to the Chief Administrator with respect to any matter falling within the Chief Administrator’s authority.129 The Canadian Judicial Council points out that this model does not adequately address the efficiency problems inherent in the executive model, because judges are not involved in understanding the business operations of their courts.130 Chief judges can issue operational directions; however, they are missing the appropriate level of analytical infrastructure to undertake the data collection, research, consultation and analysis required to properly address the questions that must be asked in order to make more effective operational decisions: 122 Baar C et al, n 17, p 102. 123 Courts Administration Service Act SC 2002 c 8 (Can), s 2. 124 Courts Administration Service Act SC 2002 c 8 (Can), s 12. 125 Courts Administration Service Act SC 2002 c 8 (Can), s 7. 126 Courts Administration Service Act SC 2002 c 8 (Can), s 2(b). 127 Courts Administration Service Act SC 2002 c 8 (Can), s 2(b). 128 Courts Administration Service Act SC 2002 c 8 (Can), s 8 outlines the judicial functions and powers of the chief judges. 129 Courts Administration Service Act SC 2002 c 8 (Can), s 9(1). 130 Baar C et al, n 17, pp 102-103. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 217 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac The court is in effect being given responsibility for ordering that some other party [ie the Courts Administration Service] perform or not perform actions necessary to achieve a level of performance that that other party has agreed beforehand to be accountable. This requires that both the judiciary and the [Courts Administration Service] are provided with current, ongoing and relevant information on all key aspects of court administration, and the extent to which the goals are being achieved. Otherwise the court has no mechanism for formulating policies or identifying whether any intervention is actually required.131 As a consequence, it appears that the most significant feature of the Canadian federal model is the existence of an administrative agency which has been set up by the Executive to operate at arm’s length from the Executive. The Victorian chief judges have commented favourably on this model because it ensures a degree of institutional separation from the Executive and potentially increases the self-responsibility of the participating courts.132 However, in practice, the formal duties and functions of this agency are not very extensive, and there are few formal mechanisms in place to assist the judges in improving their understanding of the business operations of their courts, or to provide the courts with auxiliary capabilities that are typically provided through the Attorney-General’s departments. From the legislative provisions, it is difficult to argue that the Courts Administration Service was intended to have a broad reform mandate to contribute to future improvements in the quality of justice, responsiveness or innovation in the federal courts, within the broader meaning of quality development advocated for in the first part of this article.133 According to Professor Carl Baar, one of the authors of the Canadian Judicial Council study, a number of factors have resulted in the marginalisation of this model thus far.134 First, the Canadian federal courts are highly specialised and relatively small tribunals. Members of the Canadian Judicial Council formed the view that administration of the larger Canadian provincial court systems, covering at least three levels of courts and numerous permanent court locations, required a more complex model, both internally and in relation to the Executive.135 Second, there were initial setbacks in the implementation of the model that made the Canadian judiciary reluctant to support this institutional arrangement.136 The third factor which resulted in the marginalisation of this model is the absence of any means of resolving disputes between the Chief Justices and the Chief Administrator in the event that the Chief Administrator receives conflicting directions from the Chief Justices within the federal system.137 While the legislative scheme does provide a mechanism for addressing disputes between the Executive and the judiciary, it still represents an executive model of court administration, which the Canadian Judicial Council found to be, on the whole, less efficient and effective than the more autonomous models.138 DUTCH JUDICIAL COUNCIL MODEL The discussion of the models of court governance is concluded now with a more detailed analysis of the Dutch Judicial Council. It is argued that this model incorporates the most significant features of the other models outlined in this article, and that it is the only model that allows the individual courts to fully develop their own internal capabilities and responsibilities. When analysing the Dutch Judicial Council model, it must be kept in mind that the Netherlands is a civil law country, with a different legal culture and very different judicial hierarchy and career 131 Baar C et al, n 17, p 103. 132 Supreme Court of Victoria, n 1, p 79. It is noted that the Chief Administrator is a Governor-in-Council appointee which gives him a measure of independence. 133 Courts Administration Service Act SC 2002 c 8 (Can), s 7(3). The formal duties of the Courts Administration Service include the “maintenance of the registries of the courts and the preparation of budgetary submissions for the requirements of the courts”. 134 Carl Baar, e-mail correspondence with the author, 24 March 2009. 135 Carl Baar, e-mail correspondence with the author, 24 March 2009. 136 Carl Baar, e-mail correspondence with the author, 24 March 2009. 137 Carl Baar, e-mail correspondence with the author, 24 March 2009. 138 Courts Administration Service Act SC 2002 c 8 (Can), s 7(4) provides that the powers of the Chief Administrator do not extend to any matter assigned by law to the judiciary. 218 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change progression to that of any common law country. Nevertheless, there are many reasons why elements of this model should be taken into account for the purposes of this article. First, both CEPEJ and the Canadian Judicial Council have highlighted this model in their discussions of the models of court governance in Western Europe.139 Second, the administration, financing and organisation of the courts’ working methods are not necessarily affected by the legal tradition in the same way that decision-making and judicial training may be affected.140 Third, the Dutch model that was in existence prior to the recent reforms was essentially an executive model of court governance. The internal management of the courts had been vested in the court’s presidency and the council of judges, while court operations had been separately managed by an administrative arm of the Ministry of Justice.141 The fourth, and the most important reason, is that the Dutch institutional reforms had been designed to create the preconditions for systematic improvements in the quality of the administration of justice, unity of functioning of the judiciary and client orientation of the courts.142 To achieve these aims, the courts were expected to develop their own financial and managerial capabilities and to improve their legal and organisational quality frameworks.143 The changes were designed to equip the entire judicial organisation to deal more effectively with the much larger staff of the “new-style” courts and, ultimately, to respond to the multitude of emerging legal, technological and societal challenges that were impacting upon the courts’ functioning.144 Since 1 January 2002, the court administration in the Netherlands has been supervised, facilitated and coordinated by the Judicial Council. There are two judicial officers on the four-member governing board of the Judicial Council (including the President), with the remaining two members being experts in finance and management.145 In organisational terms, the Judicial Council can be described as a non-departmental public body that operates at arm’s length from the Minister of Justice.146 There are a number of important differences between the other intermediary institutions described in this article and the Dutch Judicial Council. Arguably, the most significant difference is that the Dutch Judicial Council is primarily concerned with supporting, improving and coordinating the courts’ working methods, rather than directly managing the court administration or employing court staff.147 The Dutch Judicial Council is also responsible for preparing the budget for the Judicial Council and the courts jointly, allocating budgets from the central government budget to the courts, supporting operations at the courts, supervising the implementation of the budget by the courts, supervising operations at the courts, as well as undertaking nationwide activities relating to the recruitment, 139 Baar C et al, n 17, p 106. See generally also Voermans and Albers, n 12, Ch 10. 140 Voermans and Albers, n 12, Ch 10. The CEPEJ study identified numerous similarities between the Irish, Dutch, Swedish and Danish models of court governance. 141 Voermans and Albers, n 12, p 100 and related footnote 145. 142 See generally Langbroek P, “Organization Development of the Dutch Judiciary, between Accountability and Judicial Independence” (2010) International Journal for Court Administration 1. For a detailed overview see Boone M, Kramer P, Olthof S, van Ravesteyn J, Het functioneren van de rechterlijke organisatie in beeld: Breedteststudie evaluatie Wet organisatie an bestuur gerechten en Wet Raad voor de rechtspraak (Amstelveen, KPMG Business Advisory Services, University of Utrecht, 2006), p 2 (“Evaluation of the Organisation and Administration of Courts Act and the Judiciary (Organisation) Act”) 143 Ng G, “Quality and Justice in the Netherlands” in Fabri M et al (eds) The Administration of Justice in Europe: Towards the Development of Quality Standards (IRSiG, CNR Italy, 2003) p 321. 144 See generally Langbroek, n 7. 145 Judiciary (Organisation) Act (Nld), s 84. Pursuant to the Judiciary (Organisation) Act, all members of the Judicial Council are appointed on a six-year term by Royal Decree, following recommendations by the Minister and an independent nominating Committee headed by a presiding judge. Board members are eligible for reappointment once for a term of three years. See also Langbroek, n 142, p 5. 146 Langbroek, n 7, p 16. 147 Judiciary (Organisation) Act (Nld), s 91(2). See Committee for the Evaluation of the Modernisation of the Dutch Judiciary, Judiciary is Quality (The Hague, December 2006), p 29. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 219 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac selection, appointment and training of court staff.148 Importantly, the individual courts operate independently of the Judicial Council and have no direct relationship with the Executive. The second distinguishing feature of the Dutch Judicial Council is that it has a legislative mandate to modernise and continuously improve the quality of the administration of justice. The Judicial Council is a robust institution. It is well equipped, financially and organisationally, to provide professional, general and technical support for activities of the courts that are aimed at promoting their organisational excellence, as well as advising the government on regulation and policy to be pursued in relation to the administration of justice in the courts.149 The third distinguishing feature is that the Judicial Council has a mandate to systematically promote the legal quality in the courts, by conducting research, activities and programs that are designed to improve the quality of legal outcomes and achieve more uniform application of the law.150 However, in performing any of these tasks, the Judicial Council is not permitted to involve itself in the procedural aspects or substantive assessment of a decision in a specific case, or a category of cases, or to provide a qualitative assessment of an individual judgment or a judge.151 Notably, the Dutch Judicial Council also has responsibility for maintaining an organisational quality framework (called “RechtspraaQ”) that aims to promote organisational improvements in the courts, in a planned manner, via “quality statutes”, which the individual courts can adapt to their own situation.152 According to Albers, the Judicial Council has developed quality statutes to measure the quality of court organisation by looking at the financial area, the work processes area, the learning and growth area (“the knowledge and personnel of the organisation”) and the customer area.153 The quality “statutes” are essentially guidelines that are designed to assist the governing boards of the courts to systematically implement self-improvements, such as to adopt policies to improve the expertise of judges or to facilitate the sharing, customisation and better coordination of jurisprudence via ICT.154 The basic premise of all of these organisational programs is that courts are “learning organisations”.155 Therefore, the Dutch Judicial Council can be best described as a central service organisation for the courts, being responsible for developing projects for quality management, professional support, provision of research and information by the courts to the public, administrative support, press 148 Judiciary (Organisation) Act (Nld), s 91(1). See Langbroek, n 142, pp 5 and 8. The management boards of the courts and the Judicial Council had gone through a learning phase during which they developed accurate production and financial registries and learned how to deal with the annual planning and control processes. 149 Judiciary (Organisation) Act (Nld), ss 94 and 95. For example, the Judicial Council provides opinion and advice in relation to proposed legislation. 150 Judiciary (Organisation) Act (Nld), s 94. See also Council for the Judiciary, Quality in the Judicial System in the Netherlands (2008) p 4, available at http://www.rechtspraak.nl/Gerechten/RvdR/Publicaties/Research+Memoranda.htm viewed 9 March 2011. For example in 2009 and 2010 the Judicial Council completed or commissioned research on decisions involving adjustment problems in children, updated international research on minimum sentences, assessed the practices of single and multiple judge decisions, the issues involved in court sequestration, the quality of specialised commercial courts, the complexity of (statistical) information in judicial decisions, the financing and turnaround in mediation as well as a pilot study on the enforcement of civil judgments. 151 Judiciary (Organisation) Act (Nld), s 96. See generally also, Council for the Judiciary (Netherlands), Agenda for the Judiciary 2008-2011: Independent and Committed (2007), p 3. The Judicial Council develops programs in consultation with the courts to improve the reasoning of judgments, encourage second-reading of judgments, devote more time to preliminary inquiries, encourage continuous education, procedural improvements, peer review, intervision, consultations between courts of appeal and district courts, self-assessment procedures, case differentiation, customer appreciation in combination with a mentoring system. 152 Council for the Judiciary, n 150, pp 6-8. 153 Albers, n 42, p 11. 154 Albers, n 42, p 11. 155 Council for the Judiciary, n 150, p 13. The RechtspraaQ quality system for the courts is based on the Dutch version of the European Framework for Quality Management. Elements of this framework have been incorporated in the International Framework for Court Excellence, which was developed by a consortium involving the Australasian Institute for Judicial Administration. The framework is available at http://www.courtexcellence.com/pdf/IFCE-Framework-v12.pdf viewed 9 March 2011. Notably, however, the RechtspraaQ is also linked to the courts’ budgeting system called Lamicie. 220 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change policies, automation, etc. At the same time, the Judicial Council acts as a monitoring agency that distributes the budget and calls the courts to account for their expenditures and organisational functioning.156 The information received from customers is systematically collated and analysed so that the focus of the projects is not only on “efficiency” and “productivity”, but also on legal and organisational “quality”.157 Integrated internal governance model As foreshadowed, the Dutch courts themselves operate independently of the Dutch Judicial Council and the Executive, much like the Australian federal courts. They have extensive responsibilities and powers in financial and personnel matters. To assist the courts adapt to the new organisational framework, the Judiciary (Organisation) Act (Nld) introduced a number of changes in relation to the courts’ internal governance framework. The changes were intended to integrate the judicial and administrative operations of the courts in a clearly defined organisational and functional framework. Under the new arrangements, judges and clerical staff alike are formally subject to the decisions of the court governing board, which is set up as a board of executive directors.158 The board consists of a chairperson (President), up to four divisional (“sector”) chairpersons and one non-judicial member who is a director of operations.159 All members of the governing board, including the President, are appointed by Royal Decree on a six-year term.160 This internal governance model replaces the former dual (executive) administrative structure in which the council of judges performed judicial responsibilities, while employees of the Ministry of Justice separately performed various supporting duties and administrative tasks.161 The governing board is accountable to the Judicial Council for the budgeting, planning and control cycle, as well as the overall functioning of the courts, including personnel matters, the quality of the administrative and organisational procedures in the courts and information and management systems.162 The governing board is also responsible for promoting legal quality and the uniform application of the law (in coordination with the Judicial Council), insofar as these activities do not concern aspects of a specific case or decision.163 Notably, each of the court divisions has its own judicial, administrative and even financial responsibilities. This has been done with the intention that each division should be managed more independently and efficiently, by integrating all of the judicial and administrative powers at the divisional level, without the need to refer day-to-day administrative matters to the director of court 156 Langbroek, n 142. 157 Langbroek, n 142, p 11. 158 Judiciary (Organisation) Act (Nld), ss 24 and 25. 159 Judiciary (Organisation) Act (Nld), s 15. The president represents the court. See also s 19. Like the board of the Judicial Council, the governing board of the court is required by law to draw up transparent organisational rules, in the form of regulations, governing its procedure, decision-making and division of responsibilities, organisational structure, complaints procedure, delegation, replacement of members in the event of sickness or other inability to act, the division of cases between the divisions, etc. 160 Judiciary (Organisation) Act (Nld), s 15. The members of the management board may be reappointed. See also s 16. The judicial administrators are entitled to an allowance in addition to their salary for the work performed in their administrative capacity. 161 Langbroek, n 142. In the new organisational setting, the council of judges performs an advisory role to the management board. 162 Judiciary (Organisation) Act (Nld), s 23. 163 Judiciary (Organisation) Act (Nld), s 23(2) and (3). See also Malleson, n 4, p 71. This framework appears to be consistent with Professor Kate Malleson’s proposal to increase the transparency of the organisational conditions for the effective and efficient delivery of justice, in so far as such measures do not affect the freedom from improper interference which would undermine party impartiality. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 221 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac administration at the board level.164 Because the divisional chairpersons are also members of the governing board of the courts, the framework provides a significant degree of balance, collegiality and horizontality at the policy-making level (involving the chairpersons of all divisions, as well as the director of operations and the president).165 At the same time, the policy-making function and administration have been separated. The policy-making function rests solely with the governing board, while the responsibility for administration has been largely delegated to the organisational units, which are the closest to and most familiar with the judicial work.166 The collegiate set-up of the Dutch governing board and the divisional arrangements potentially address one of the key criticisms of the Chief Justices’ administrative dominance in the Australian federal courts. The Dutch Judicial Council and the Minister of Justice The Minister of Justice’s relationship with the Dutch Judicial Council has been carefully regulated, using a system of multiple checks and balances that are designed to ensure the Judicial Council’s institutional autonomy and the Minister’s overall responsibility for the administration of justice. The basic idea is that the Minister of Justice maintains broad political responsibility for the operation of the Judicial Council while the Judicial Council continues to operate at arm’s length from the Minister. The Judicial Council has a legal duty to provide the Ministry of Justice with adequate information relating to finances and the organisational functioning of the courts and of the Judicial Council itself. The Minister may not interfere in the Judicial Council’s specific organisational strategies or policies, except in exceptional circumstances where the Judicial Council makes decisions that are “manifestly contrary to the law or prejudicial to the proper operation of the courts”.167 However, in exercising that power, according to s 109 of the Judiciary (Organisation) Act, the Minister may not involve himself or herself in the procedural aspects or substantive assessment of a specific case or category of case.168 The Minister is also entitled to issue general directions to the Judicial Council in so far as they may be necessary with a view to the proper operation of the courts.169 However, if the Judicial Council takes the view that a Minister’s direction would infringe s 109, the direction must not be issued.170 Finally, the Minister retains the power to recommend to the Crown to suspend or dismiss one or more members of the Judicial Council for reasons of “unsuitability”.171 However, an interested party may appeal to the Dutch Supreme Court to assess whether the Crown could have reasonably concluded that there was unsuitability or a good reason to suspect unsuitability.172 Arguably, the Dutch model incorporates the most important features of the models outlined above, which include: 1. integrated court management including finances, planning and human resources (Australian federal courts); 2. remote coordination, support and servicing (the South Australian Judicial Council); 3. the Judicial Council operates at arm’s length from the Executive (Canadian federal courts); 164 Ng, n 24, p 110. See also Franssen J, Mein A and Verberk S, Gerechtsbesturen, integral management en md-beleid, (B&A Groep, WODC 2006), pp 2 and 4 (“The Functioning of Court Administrations, Integral Management and Management Development Policy”). 165 Committee for the Evaluation of the Modernisation of the Dutch Judiciary, n 147, p 22. 166 Franssen et al, n 164, p 6. The authors also conclude: “The definitions of tasks, powers and responsibilities are clear. The court administrative boards are currently better able to manage their own organisations as a result of the transparency of the spending budgets. At sector level in particular, integral management has been effectively implemented. In that sense the introduction of the integral management concept has provided a solution to the aforementioned lack of clarity regarding the division of tasks, powers and responsibilities (formerly referred to as the ‘double dual structure’ [in the executive model]”. 167 Judiciary (Organisation) Act (Nld), s 106. The Minister makes a recommendation and the decision is made by Royal Decree. 168 Judiciary (Organisation) Act (Nld), s 109. 169 Judiciary (Organisation) Act (Nld), s 93. 170 Judiciary (Organisation) Act (Nld), s 93(4). 171 Judiciary (Organisation) Act (Nld), s 107. 172 Judiciary (Organisation) Act (Nld), s 108(2). 222 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Court governance: The challenge of change 4. there is a separation of the judicial function from the judges’ administrative function (England and Wales); and 5. significant judicial representation on the board of the Judicial Council (Ireland, England and Wales). One of the remarkable features of the Dutch model is the clear separation between the “management” and “ownership” of the governing boards of the courts and the board of the Judicial Council. All judicial appointments are made primarily on the basis of the judicial officers’ professionalism and experience in administration, in recognition of the fact that only judicial administrators are able to improve the judicial side of the courts’ business and that professional administrators do not have sufficient understanding of, or access to, the judicial side of the courts’ business. Most importantly, the Dutch Judicial Council is a robust, well-equipped professional institution, designed to perform a broad monitoring, servicing and coordinating role in this process. It encourages the institutional independence of the courts and the judiciary, while at the same time expanding the self-responsibility and accountability of the courts in the areas of administration, management, personnel, finances and budgeting.173 A particular emphasis is placed on supporting programs aimed at improving the quality of working methods in courts and introducing measures and frameworks for improving the quality of jurisprudence, research, client orientation and legal unity. TOWARDS A JUDICIAL COUNCIL OF VICTORIA One of the principal aims of this article was to identify the factors that are impeding the authority, efficiency and responsiveness of the Victorian courts. It has been argued that the most serious obstacle to greater responsiveness and institutional accountability of the courts lies in the “faulty” institutional design which is inherent in the executive model of court administration. The suggested solution is to adopt the autonomous federal courts model, with some internal modifications, because it would allow the courts and judges to develop more integrated internal management solutions and more opportunities to drive the essential processes from intake to judgment. Accordingly, this article has argued strongly against any model of court governance that would maintain administrative or financial separation between the courts and court administration and dual chains of command. It has also been argued that overworked and overburdened individual judges are not in an effective position to initiate systematic improvements to the quality of the administration of justice without more robust and sophisticated organisational and supporting mechanisms, which would enable these important public institutions to achieve a greater degree of organisational transparency, efficiency, responsiveness and unity. The Dutch model appears to be the closest to having the desired institutional and functional architecture, because it integrates the most significant features of the other models outlined in this article. It is also the only institution that has a broad mandate to improve the quality of the administration of justice while at the same time expanding the self-responsibility of the courts and ensuring their full institutional separation from the Executive. In these concluding remarks, it is suggested that the Judicial College of Victoria may be well placed as an institution to form part of a future Judicial Council of Victoria, although further and specific research should be conducted to evaluate this option. The Judicial College of Victoria is already responsible for some of the quality-related functions performed by the Dutch Judicial Council, particularly in the areas of judicial education and legal unity. The Judicial College of Victoria is well known for developing high-quality programs and projects that are designed to keep judicial officers in touch with the community, aware of pressing social issues, in tune with technology and up-to-date with latest developments in the law.174 The basic philosophy of the Judicial College of Victoria is that courts are learning organisations, which is consistent with the general aims for a judicial council 173 Voermans and Albers, n 12, p 103. 174 Judicial College of Victoria at http://www.judicialcollege.vic.edu.au/about-us viewed 9 March 2011; see also Judicial College of Victoria Act 2001 (Vic), s 5. (2011) 20 JJA 201 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com 223 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com Bunjevac outlined in the first part of this article.175 Furthermore, the Judicial College of Victoria already enjoys broad stakeholder support from within the ranks of the judiciary as well as the government. Its board of directors is a compact and diverse governing body comprising the chief judicial officers of the Victorian courts and Victorian Civil and Administrative Tribunal (or their nominees), as well as two experts nominated by the Attorney-General who have relevant experience in the areas of education and community issues affecting the courts.176 This set-up appears to work well in practice to ensure majority judicial participation on the board, while at the same time importing a degree of external expertise and social perspective. The courts and the government should nevertheless investigate the possibility of limiting the term of all board members, nominees and appointees to a period of four to six years, as this would lead to further professionalisation and de-politicisation of the Judicial Council and greater separation of the “ownership” from “management” of the institution. The compact, professional and, above all, apolitical membership of the board of the Dutch Judicial Council is an example of a good working model.177 The main political challenge for the new Judicial Council of Victoria will be to secure a permanent commitment to expand and equip this new organisation with sufficient operational, administrative and technical resources, which are currently offered by the Department of Justice. A robust “general and technical” organisation can serve as an institutional buffer between the courts and the Executive, while at the same time promoting the institutional competence and self-responsibility of each of the courts’ tiers for their own organisational functioning. Indeed, one of the practical lessons from Ireland, England and the Netherlands is that the business of reforming and modernising the system of the administration of justice requires significant and permanent investments in the courts and the judicial organisation as a whole. Finally, as noted earlier in the context of the Irish and English institutional reforms, the courts must be ready to work in tandem with other government agencies and embrace the new philosophy of the court system, which requires that the courts and judges take into account the concepts of quality, service competitiveness and transparency that were previously associated primarily with the private sector.178 The Judicial Council of Victoria can provide the necessary impetus for such reforms by assisting the courts develop quality frameworks aimed at systematically improving their client orientation, efficiency, quality and transparency. 175 According to the Judicial College of Victoria’s website, the institution symbolises a “continuum of life-long learning”. 176 Judicial College of Victoria Act 2001 (Vic), s 8. 177 Initially the board had consisted of five members (including three judicial members); however, following a recommendation by the Committee for the Evaluation of the Modernisation of the Dutch Judiciary, it was decided that the board would be reduced to four members (and possibly three over time). 178 Finnegan, n 83, p 4. 224 © 2011 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to LTA.service@thomsonreuters.com (2011) 20 JJA 201 Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. Should you wish to reproduce this article, either in part or in its entirety, in any medium, please ensure you seek permission from our permissions officer. Please email any queries to LTA.permissions@thomsonreuters.com