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Monday, 3 May 1993

The State of the Judicature in the ACT

The 1993 Blackburn Lecture, delivered by The Hon Jeffrey Miles AO, Chief Justice of the Australian Capital Territory.

It is a pleasure and an honour to be asked to deliver the eighth Sir Richard Blackburn Lecture. Sir Richard himself gave the first. He commended the Law Society for its initiative in establishing the lecture as an annual event in the legal life of Canberra. I do likewise.

I did not know Sir Richard well before I came to Canberra in 1985, appropriately conscious, I hope, of the responsibility attached to attempting to carry on the task that he had discharged with such distinction. Unfortunately, with his rapid deterioration in health our friendship had little chance to develop. I must confess to being not particularly familiar then with his judgments, with the notable exception of Milirrpum,[1] which I had read and re-read, not because it had anything to do with areas in which I had practised, but because it dealt in such a comprehensive and scholarly way with the subject of aboriginal customary title, a subject which, even in 1971, many considered to be of fundamental importance to Australian society and to its legal foundation. The epoch-making decision of the High Court last year in Mabo[2] displaces the Blackburn judgment but in no way detracts from its legitimacy as an example of orthodox judicial method.

Having accepted the invitation to speak this evening, I went back to Sir Richard's inaugural lecture on “The Courts and the Community”. What struck me immediately was the extent to which there have been developments since then on matters about which Sir Richard expressed concern. At the same time many of the underlying problems remain. It occurred to me that it might be appropriate to place on the public record some of the changes and to report on the current state of the ACT Courts, and their relationship to the ACT community. I hesitated to follow that course. To do so might appear to presume to adopt a role performed by successive Chief Justices of the High Court, who have since 1977 delivered an address to the biannual Australian Legal Convention on the state of the judicature in Australia.[3] Moreover, Sir Richard Blackburn himself believed strongly that a lecture such as this should go beyond the furnishing of information to the stimulation of thought.[4]

Nevertheless, I decided to act upon my initial impulse. It is timely to take stock of the Courts in the ACT, and to do that properly involves going beyond simply recording the facts. It involves consideration of matters of principle, even perhaps matters of controversy. There is, of course, always a danger in a judge going beyond the task of judging, which is the first function and duty, and making public utterances, particularly on subjects where a judge's views can command no more respect than those of any other member of the community. Yet there are other areas where the experience and knowledge of judges, gained over some years, may not be available to the wider community unless occasions such as the Blackburn lecture are utilised.

The most important event to be recorded is the transfer of the ACT Supreme Court and Magistrates Court into the institutions of self-government of the Territory, something which Sir Richard would not have envisaged. I have traced elsewhere the history of the conferral of self-government as it relates to the Courts[5] and will not repeat it here. Suffice to say that the decision to include the Courts within the scope of self-government in the ACT was made on that night of 24 November 1988 when the Opposition parties in the Senate (concerned primarily with the proposed electoral system) combined to persuade the Government that “there cannot be a real self-government without the courts and the legal process”.[6] However, and, I think, fortunately, the transfer of the judicature was postponed to 1 July 1990 in the case of the Magistrates Court and 1 July 1992 in the case of the Supreme Court. This gave time for consultation among interested parties.

A question of fundamental importance which arose immediately was that of the independence of the. Judiciary to the extent that it depends on the security of tenure of its members. The rule of law in a democracy requires that judicial officers, who stand between the citizen and executive government, should be free to adjudicate without the threat of removal by that government. Indeed, in a federal system where it is the duty of the judicature from time to time to rule on whether a legislature has exceeded its powers, the power even of a legislature to remove a judge or magistrate should be clearly defined and not exercisable lightly. Hence, s.71 of the Australian constitution forbids the removal of a High Court or other federal judge unless by the Governor-General acting on an address of both Houses of Parliament in the same session for proved misbehaviour or incapacity on the part of the judge.

This position in the Constitution was reflected in sub-s.4(6) of the Australian Capital Territory Supreme Court Act 1933 and sub-s.10D(1) of the Magistrates Court Ordinance 1930 which gave similar protection to ACT Judges and Magistrates. After self-government both Act and Ordinance became enactments of the ACT Legislative Assembly and amenable to amendment or repeal by the Assembly.[7] Furthermore, both Commonwealth and Territory governments viewed the retention of a role in the dismissal process by the Commonwealth Parliament and by the Governor-General as inappropriate.

Fortunately again, the Courts were consulted on the matter of removal of Judges and Magistrates prior to the Territory taking responsibility for those matters. I took the opportunity to draw attention to an allied matter relating to judicial independence. That is the power of the Legislative Assembly to abolish the Supreme Court (and the Magistrates Court) altogether. This was at the time a live issue and again I have written of it elsewhere.[8] I remind you of the Justice Staples affair,[9] the ACT government's reaction to the decision in the Canberra Times site case[10] and the ACT Attorney-General's proposal to give the bulk of the Supreme Court's first instance jurisdiction to a new court called the Canberra Court constituted by members of the former Magistrates Court.[11]

In this atmosphere I urged on behalf of the Judges that the Commonwealth should enshrine in the self-government legislation provisions akin to those of Chapter III of the Australian Constitution, provisions which would ensure the survival of the ACT Supreme Court, exercising essentially the same sort of jurisdiction exercised by the Supreme Courts of the States and of the Northern Territory.[12] Eventually the Legislative Assembly responded by requesting the Commonwealth Parliament to enact legislation along the lines I suggested, and, in addition, to provide for the removal of judicial officers by the Territory Executive, but only at the request of the Legislative Assembly acting in accordance with a report of a judicial commission in which the commission concludes that the behaviour or physical or mental capacity of the judicial officer could amount to proved misbehaviour or incapacity such as to warrant removal from office. These provisions for removal of judicial officers reflect in the light of Territory conditions the recommendations in 1987 of the Advisory Committee to the Constitutional Commission on the Australian Judicial System.

However, the amendment to the self-government legislation which the Commonwealth Government brought down did not accord entirely with the request of the Assembly. An earlier draft Commonwealth Bill providing that “the judicial power of the Territory is vested in the Supreme Court and any other courts created by the Assembly” was discarded. Instead, the self-government legislation was amended to provide merely that “the Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory”.[13] That provision does not guarantee the continuing existence of the Supreme Court or any other Territory court. The provision is repeated in what is now the Supreme Court Act 1933 of the ACT, sub-s.4(6).

As to the removal of the Judges and Magistrates, the self-government legislation does not make any direct provision at all. It simply says that any ACT enactment as to removal “must provide” for the removal of a judicial officer in the way requested by the Assembly.[14]

In 1992 the ACT Attorney-General introduced into the Legislative Assembly an exposure draft of a Judicial Commissions Bill, which makes provision along the lines required by the self-government legislation. Until the Bill is passed there appears to be some doubt as to the effectiveness or validity of the surviving provisions for removal. At this moment the Judges are removable by the Executive acting on an address of the Legislative Assembly for proved misbehaviour or incapacity.[15] In the case of the Magistrates, the power of removal is still with the Governor-General.[16]

The matter of legislation relating to the existence and jurisdiction of the Supreme Court and to the removal of Judges and Magistrates has taken up much time and attention on the part of the Judges and the ACT Attorney-General and his officers. The importance of such matters is not to be underestimated. Notwithstanding the widespread concern over the removal of Justice Staples by abolition of the Commission of which he was a member, with a statutory right to the tenure and status of a federal judge, a similar process took place when the Victorian Parliament in 1992 abolished the Accident Compensation Tribunal, effectively removing its members from office. Despite its title (and in contrast to the Commonwealth Conciliation and Arbitration Commission) the Tribunal was constituted as a court, its members were styled judges and held judicial tenure. All were effectively removed from office by the abolition of the Tribunal without any suggestion of misconduct on their part. In addition to the grave injustice to those individual members who were not appointed to another court or tribunal, there was, in my view, a serious blow delivered at judicial independence. There is a real threat to members of all Australian courts not constitutionally protected that, should the court or any of its members act in a way unsatisfactory to the government of the day (which government would ordinarily command a majority in the legislature), the court would be abolished. Whilst governments are free and indeed perhaps obliged to use their powers in order to create courts and tribunals in the public interest, which may involve the abolition of existing courts and tribunals, the cost to judicial independence and therefore to the public interest is too high if the members of the abolished tribunals are not appointed to another tribunal in the reconstituted system. The New South Wales Parliament has moved to provide that a court may not be abolished unless its members are appointed to another judicial office of equivalent rank or status.[17] The ACT Government has declined to do likewise.

I want to say something about the relationship between the judiciary and the other branches of government. The Governor-General plays no part in the government of the ACT (except to the extent that he may dissolve the Assembly in specified circumstances or disallow enactments).[18] The Executive is comprised of the Chief Minister and three other Ministers.[19] There is no governor as in a State, and no administrator as in the Northern Territory or in the external Territories. Although the self-government legislation provides that the Australian Capital Territory is a self-governing body politic under the Crown,[20] the role of the Crown in the Territory, if any, is obscure. The matter may require judicial pronouncement unless overtaken by other events.

The relationship between the ACT Supreme Court and the executive government of the day has always been different from that of counterparts in the States. The Commonwealth has no responsibility for the administration of justice in a general sense. On the other hand, the Attorneys-General in the States have always had the administration of justice at the core of their areas of executive responsibility. It follows that there is in the States a common area of interest which does not exist as between a Commonwealth Attorney-General and a Territory Supreme Court.

Since self-government, the ACT Attorney-General, in the exercise of the duties of that portfolio, has been able to take a more direct and active interest in the affairs of the judiciary in the ACT than was the case during the Commonwealth regime. The amount of consultation now on matters of mutual interest is greater than existed previously.

There are negative aspects. One is that it is inevitable that the Attorney-General's time and energy be divided between the duties of that portfolio and those of the other portfolios that must be allocated to the same Minister in an Executive of only four Ministers. Another is the sheer volume of material that issues from the Attorney-General's office and other ACT government instrumentalities on which the opinion of the Court or of myself is invited or to which our attention is directed often as a matter of urgency. I do not mention this in order to stop it. I welcome the consultation process and I gladly contrast the present situation with that in the past when I used to complain of lack of consultation. The amount of time that is now spent on non-judicial activity imposes a very heavy burden, much heavier than what it was in past years. That time is spent without reduction in court sitting time and it is in addition to the hours spent out of court considering reserved judgments.

This leads me to the next major development affecting the judiciary since 1986. It is the increasing responsibility assumed by most courts in Australia for their own management. This responsibility includes the formulation and implementation of techniques for reducing delays between the commencement of proceedings and their ultimate disposition, whether that disposition be by way of adjudication on the one hand, or by settlement by agreement of the parties on the other hand. In the case of some courts it extends to full responsibility for financial budgeting and accounts. These developments are, in my view, quite remarkable. They have a recognizable starting point in a seminar organized by the Australian Institute of Judicial Administration soon after Sir Richard Blackburn's retirement, attended by Chief Justices, Attorneys-General and heads of executive government departments concerned with the administration of justice. The seminar led to a clear understanding that judicial independence would be better secured by giving the courts a greater role in their own administration and that by using this increased power the courts would exercise more effective control over delays and costs.[21]

At that stage the only court in Australia which had full control over its own budget and internal administration was the High Court of Australia. It had had that responsibility since 1979.[22] Subsequently the Federal Court of Australia and the Family Court of Australia have been given similar powers and responsibilities.[23] At the time of these latter developments, while the ACT Supreme Court was still a Commonwealth body, I made it known that the ACT Supreme Court could not be expected to discharge those responsibilities unless it was given adequate resources in order to discharge them. During Sir Richard Blackburn's stewardship the judicial workload was distributed more or less equally amongst the three resident Judges. Subject to the contribution now made by the Master, this system (for want of a better term) has continued. To take any Judge, including the Chief Justice, out of the system in order to attend to substantial statutory administrative responsibilities would be to place an unfair load upon the remaining Judges.

I acknowledge that the long-term efficiency of the Court may require that Judges spend less time in court and more on the non-judicial matters that now seem expected of them. However, I am not yet persuaded that the time has come to assign less judicial work to a particular Judge or to the Judges generally. Part of the difficulty is that generally speaking Judges are not trained administrators. Although judicial monitoring of a court's caseload has in the past few years become part of the accepted wisdom in the English speaking world, even that has its critics. Some say that judicial management of the caseload tends to increase rather than reduce court costs and delay.[24] A recent President of the New South Wales Law Society has been a vocal exponent of that view. I am quite convinced that judicial control of financial and administrative management of the ACT Supreme Court is not likely to be successful unless supported by sound administrative and financial expertise, something which it now lacks. As a minimum, before the ACT Supreme Court can take full responsibility for its own management similar to that assumed by the federal courts, there should be: a fourth resident judge, firm arrangements as to the contribution to be made by additional judges, executive personnel at a senior level with extensive administrative and financial skills and an adequate Court building. When those requirements are met, it will be time perhaps for the formation in the Territory of something like the recently formed Courts Administration Council of South Australia, of which Chief Justice King has said:

“The establishment of a judiciary based court administration service free of the ambiguities and confusions of the present system and with clear lines of responsibility and accountability, would clear the way for the development of the standards of efficiency in court administration necessary to meet the contemporary need.”[25]

Demand for a fourth resident judge has been made so often and for so long that it is almost tedious to raise it yet again. “May his shadow” Sir Richard once said, “never grow the less”.[26] I simply repeat that in 1972, when the third resident judge was appointed, the population of the ACT was 166,384. It is now likely to exceed 300,000. Judicial resources in other small jurisdictions in Australia are less scarce.[27] Of course the ratio of judges to population is not the only criterion for comparable statistics. There should be proper comparison of crime rates, volume of civil litigation and so on. We are not statisticians in the Court and although we collect and publish the figures that we think useful (some are annexed to the written version of this lecture), there is no Australia-wide basis for comparison with other jurisdictions. I understand that the AIJA and the Australian Bureau of Statistics are in the process of developing a statistical system for adoption by Australian courts.

Finally on this subject of court administration, I note that whilst most businesses these days, even the smallest, seem to record their transactions and organize themselves through the computer, the use of information technology is yet to come to the ACT Supreme Court. I gather that one stumbling block is the lack of appropriate software and another is that the budget does not allow for it. In this respect court administration is treated like that of other government instrumentalities and its expenditure is expected to be reduced unless increases in efficiency can be demonstrated year by year.

The chief administrative officer of the Court at present is the Registrar who is responsible in administrative and financial matters to the executive government and not to the Court. The Registrar's duties include the preparation of the Court's budget. The Registrar has been directed recently by the Attorney-General's Department to reduce administrative expenditure (about $1.5 million) in the coming year by two percent. Options under consideration include reducing the numbers of persons called for jury service and providing even simpler refreshment for jurors.

For at least the last twenty years the size of the ACT Supreme Court has been limited by deliberate policy that it be constituted by fewer full-time judges than needed to discharge the Court's workload. It was the policy of successive Commonwealth governments to supplement the resident Judges with additional part-time Judges who lived away from Canberra and whose primary commission was on another Commonwealth Court. An arrangement of this nature was probably inevitable, given the lack of flexibility in a very small Court and the recurrence of situations where local Judges are disqualified or otherwise unable to sit on certain cases. The ACT Supreme Court and the Territory have received considerable benefit from the contribution made by the additional Judges with their diverse backgrounds and experience. However, although their numbers have hardly declined, their availability has decreased substantially as the workload of the Federal Court has increased.

In my early and more innocent days in Canberra I accepted, perhaps too readily, the assurances of the Commonwealth Attorney-General's Department that the appointment of a fourth resident Judge was a financial and political impossibility. So placated, I sought to approach the matter another way. According to my arithmetic, if each of the additional Judges were to have spent between one and two weeks each year sitting in the ACT Supreme Court, the total time contributed would have been equal to that of a fourth Judge. As it was, additional Judges, being asked to assist as the need arose, contributed about 15 percent of total court sitting time. It seemed to me that with rational planning and long-term rostering the proportion could be increased to 25 percent of total court sitting time.

It also seemed to me that there was some equity in this approach, as the time spent by ACT Judges on the Federal Court, on other Commonwealth tribunals and on other Territory courts was more than 25 percent of the total court sitting time of the ACT Supreme Court. This fact in itself caused me no concern. An Australian judge contributes to the good of Australia in whatever jurisdiction he or she happens to sit. However, for reasons which need not detain you, my proposal needed only to be made in order to be rejected. The brutal fact is that in Australia courts compete not only with other branches of government for resources, they compete with each other. In practice, the additional Judges continue to be available only to meet urgent needs and upon cause shown. I hasten to acknowledge that Chief Justice Black has been most understanding and helpful in trying to make additional Judges available to meet such needs despite the greatly increased workload of his own Federal Court.

There is a danger that a court whose members have a primary commitment elsewhere gives a false impression of adequate judicial staffing. Furthermore, the Chief Justice, who, according to common statutory provisions, has a responsibility for the orderly and expeditious charge of the business of the court,[28] is hindered in the discharge of that responsibility. Normally the division of the workload can be made on the assumption that all judges are available to share it, subject to leave arrangements and unforeseen circumstances such as illness. That assumption cannot be made for the purposes of the ACT Supreme Court.

Nevertheless, even four resident Judges in the ACT would not be sufficient and it must be accepted that part-time additional Judges will continue to be a feature of the Court as far as the future can be foreseen. Such advantage as there is in this arrangement is reflected in present proposals for limited exchanges of Judges among the other Supreme Courts in Australia. The ACT Government has in mind to amend the Supreme Court Act to allow for Judges of other Supreme Courts to be appointed as additional judges. But note that the proposals elsewhere involve a genuine exchange of judges. It is not sufficiently recognized in the ACT, or outside, that we send out a lot more in judicial resources than we get back. That may be a tribute to the quality of our judiciary, but there is something ironic about the ACT performing the role of a net exporter of judicial services to the rest of Australia, like a rich nation dispensing aid to the Third World.

All is not doom and gloom, however. The appointment of a Master at the beginning of 1988 has been a great success. The nature of the work performed by a Master is often misunderstood, because it varies from place to place. In some courts a Master is restricted to deciding interlocutory and procedural disputes. But in others, such as the Supreme Court of New South Wales, it extends to cover much of the court's substantive civil jurisdiction. I am glad to say that the ACT opted for the latter model and we were fortunate in the appointment of a Master well equipped to exercise a wide jurisdiction. It includes claims for damages arising out of motor vehicle accidents (whether or not liability is in issue), assessment of damages in all cases when liability is not in issue, and any matter in which the parties consent and the Court gives leave. Because a substantial proportion of the Supreme Court workload can be borne in this way, there is considerably less cost to the public purse. There is, however, the danger that in continuing to decline to appoint a fourth Judge and to rely on the outstanding performance of the Master, the government is virtually getting a Judge on the cheap. Whatever attraction that has for the time being, it cannot last indefinitely.

It is trite to say that the single factor contributing most to delays in the disposition of matters coming before the courts is the simple matter of the increasing number of cases commenced in the courts. Despite the increasing number of cases commenced, delays have been steadily reduced and the number of judge sitting days in 1992 was a record high.[29] Postponed leave entitlements and the prospect of some extraordinarily long trials in the current list leave no room for complacency.

Delay, and its concomitant, cost, are of increasing concern to the public, the politicians and the courts themselves. Governments (and others) these days tend to reject any idea that the appointment of more judges can do anything to help. It is said in general terms that the solution lies with the courts themselves and that they should be more efficient.[30] More specifically, it is said that they should be, for instance, more rigorous about time-tables for filing documents, less generous about adjournments, less patient with counsel who cross-examine at length and so on. These suggestions are of limited value. Taken too far they lessen the quality of justice and increase the number of appeals. Moreover, trial courts cannot decide for themselves what cases they will hear. They have no control over the rate of arrest or the incidence say, of personal injury. They are subject to the direction of appeal courts. The tendency, I suggest, of many decisions of the appeal courts is to increase the volume of civil litigation and the length of criminal trials. In the area of negligence, for instance, the limits of liability are continually extended. In criminal trials there is now a clearly recognized general and over-riding duty on the part of the trial judge to ensure a fair trial to the accused.[31] The discretionary decisions to be made during the course of or in advance of the trial grow in number and in importance. Although it is a matter of impression only and not the result of research, it is my view that these discretionary decisions, often requiring evidence to be taken outside the trial itself, contribute to the length of the trial, and to the uncertainty of outcome.

There is some recognition that community expectations of the justice system may be greater than what the system can deliver given the limitation on the resources that the same community is prepared to put into the system. A report by the American Bar Association in August last year concluded that a combination of increased demand and shrinking resources threatens the availability and quality of justice in that country. The President of the ABA has advocated several measures to overcome a “justice deficit”. Such measures include justice system impact statements which would analyse the funding and workload impact of proposed legislation and executive government policies and decisions on every element of the criminal and civil justice system.[32]

I suggest that there might be added the impact of judicial decisions at appellate level. For instance, if a prosecuting authority is to be held liable for a successful defendant's costs,[33] then the resources available to prosecute are reduced accordingly. Conversely, if a legal aid authority is able to recoup costs, then that may compensate for the increased demands placed upon its funds by the establishment of a legal rule that a person without funds and unable to obtain legal representation should not have to stand trial for a serious offence.[34]

In 1990 the Chief Justice of the State of New York submitted the budget for the judiciary to the Governor as required by law. It contained a request for a 4 percent increase. When passed it contained a 4 percent reduction. The impact is said to have been immediate and stunning.[35] The Office of Court Administration reduced non-judicial staff by 1700 people. In some counties there were no civil jury trials for three months. In others half the courtrooms were closed. Judges could not be removed or suspended but without court staff they remained confined to chambers. Without the threat of trial the settlement rate dropped by half.

So Chief Justice Wachtler[36] filed a complaint verified on oath against Governor Cuomo and the legislature in the state court of first instance, claiming that the judiciary has an inherent right and power to compel reasonable and necessary funding of court operations.

There was no lack of American precedent to support both sides. For instance, the Pennsylvania Supreme Court in 1986 ordered Philadelphia to appropriate more than $1 million for its court of common pleas.[37] On the other hand, the New York Court of Appeals in 1975 refused to rule that there was a right to counsel at public expense in matrimonial cases. That Court said, “The absence of appropriated funds and legislation to raise taxes under our State constitutional system … is not a judicially fillable gap”.[38] The thought, although perhaps not the language, echoes the remarks of Mr. Justice Brennan, dissenting, in Dietrich.[39]

By some Australian standards the situation in the United States appears disastrous. In that country in 1991 eight states ceased hearing civil cases in order to transfer resources to their criminal jurisdiction. Yet the ABA President found it a matter of serious concern that in five states public defenders rejected cases because of insufficient funding for their offices. What, you ask, only five states? Legal aid offices in this country are always turning back cases because of insufficient funds. And with the recent decision of the High Court in Dietrich the demand for their services is likely to increase.

Most courts in Australia have in place by now case management and delay reduction programmes designed to meet their particular needs. In the ACT we have kept up to date with developments and techniques in Australia and overseas. Without descending into detail, I should say that such programmes aim before all else to ensure that cases which settle do so early, so that costs to litigants and the use of court resources are minimised. We have not felt the need for radical surgery. In personal injury claims the litigation process itself often contributes to the plaintiff's ills, another reason why early settlement is desirable. However, the condition of seriously injured plaintiffs often takes years to stabilize and, generally speaking, it is unfair to force a trial date upon a plaintiff who is not ready to present a proper medical picture of his or her condition. That is one reason why in the Supreme Court we have not sought until now to exercise any control over civil cases until the parties are ready for hearing. Once the solicitors have so certified, however, the Court, generally through the Deputy Registrar at a listing hearing or listing conference, supervises the preparation for hearing, seeking in particular to narrow the issues and to encourage the parties to settle their differences entirely.

On the criminal side, it must be emphasized that, under the present system, the Supreme Court has no direct role to play until the defendant is committed for trial by a Magistrate. However, unlike the situation in some other places, we do not wait in the ACT Supreme Court until the prosecuting authority decides to present an indictment. All matters the subject of committal are listed at a call-over held by a Judge at approximately monthly intervals. At the call-over, matters in which a plea of guilty may be entered are identified, the prosecution is encouraged to find a bill of indictment where this has not already been done, directions may be given as to disclosure of particulars and the like, dates for further directions in complex cases may be fixed and trial dates fixed for matters ready for trial.

The result has been that, in most cases, delays in the Supreme Court have been held within limits, which are, dare I say, reasonably acceptable. But there are exceptions (which distort the statistics) and there is room for improvement. At the beginning of this year we identified those cases in which delay was most apparent (18 months from committal in criminal matters, 12 months from certificate of readiness in civil) and, with the assistance of practitioners, we managed to give them either a shot in the arm or a decent burial. That should have a noticeable effect on our statistics and the exercise will be repeated again next year.

We have provided also for some forms of alternative dispute resolution annexed to Court procedures and are working towards making others available, including the Law Society's mediation service. At this time ADR procedures in the ACT appear to be underutilized.

Although aware of the risk of unnecessarily complex pre-trial procedures, I have asked the Rules Committee to look at changing our forms of initiating process, so that monitoring by the Court can take place without waiting for the parties to signify their readiness. I have in mind that the writ of summons be abolished and replaced by a simple form of statement of claim or summary application, whichever is appropriate. Practitioners will be familiar with similar initiating processes in the Supreme Court of New South Wales and also with the procedure in the Federal Court where a date for directions is given soon after the commencement of all proceedings. Directions at that stage and as of course are, I think, too cumbersome and too expensive in a court of general jurisdiction such as the ACT Supreme Court. It would be appropriate that claims for personal injury and claims in the nature of simple debt collection not be subject to the proposed system. Those sorts of cases might be brought into the system by consent of the parties. Conversely, where the parties prefer not to be subject to court supervision, or prove incapable of responding to it, their cases might be taken out of the system. The proposal will naturally be the subject of consultation with the Law Society and Bar Association. I have asked that 1 July next be set as a target date for its commencement.

Case management is only one part of the practice and procedure of the Supreme Court. Much of the civil procedure is controlled by Rules of Court. The Rules are the subject of continuing revision by an informal part-time Rules Committee which meets monthly and is representative of the Court, the profession and the ACT government. The Attorney-General's Department has produced a discussion paper proposing “radical rethinking” of the Rules which it castigates as too long and too hard to understand and a considerable obstacle to the provision of justice. The Law Reform Committee, which includes members of the general community, is to be given an as yet undefined role in the wholesale revision of the Rules.

Personally I welcome radical rethinking, examination of underlying structural faults, the rejection of blind acceptance of existing parameters and so on. I am even interested in comparison with the European inquisitional system. Some years ago I abandoned as futile efforts to obtain a special allocation of funds sufficient to permit a comprehensive revision of the Rules to be undertaken. If someone else has the time and resources to attend to these things, I look forward to seeing the result. But writing a new set of Rules of Court is not like publishing a manifesto about justice. New Rules, to be promulgated by the Court itself, must be the product of skill and experience in a fairly technical field. That is why in his final months of office later in the year, the Master will concentrate on a revision of those Rules that need it. Many do not. A substantial number of them are of recent origin and made as part of Australia-wide schemes in corporation law, commercial arbitration and so on.

On the criminal side, there is little to be gained by any structural change to the present system of call-overs and directions hearings following committal. Some small changes could be beneficial. I have yet to convince the Law Society that there would be an advantage in practitioners filing a notice of appearance on behalf of an accused person committed for trial. In my view, that would help avoid the late cancellation of trial dates, which still occurs too often.

I will say that what contributes most to the delay between arrest and trial is the committal hearing. Sir Richard Blackburn was of a similar view.[40] However, any consideration of the reform of the committal hearing, let alone its abolition, raises issues of complexity and of controversy, not to say of emotion. The committal hearing is dear to the hearts of Australian defence lawyers. I throw out this proposition for consideration: the series of events from arrest to acquittal or from arrest to conviction and sentence should be regarded as one process in which management and disposition is the responsibility of one court.

I turn now to court accommodation. In the ACT we do not have the problem as in the United States of new courts standing empty for want of money to fund their operation. On the contrary, the shortage of court accommodation has become acute. In 1981 the Commonwealth Government produced detailed plans as part of a well-developed proposal for a new Commonwealth Courts building on London Circuit opposite the Lakeside Hotel. However, these plans were no sooner produced then it was decreed that construction be deferred. Not forgotten but deferred. On 19 May 1981 the Commonwealth Attorney-General wrote to the Chief Justice saying that the proposed building would be deferred for a period of three years. Hope that the project would be revived in accordance with such expression of intention had not faded at the time of Sir Richard's retirement. Time went by. I raised the subject of the inadequacy of the present building from time to time. The appointment of the Master added a new urgency. As a stop-gap measure the appalling jury rooms were enlarged at the expense of space for Sheriffs Officers and conference rooms for litigants and practitioners. On 3 May 1988 the Commonwealth Attorney-General wrote me a letter in which he said that the new building would be commenced in 1991 and completed in 1993. He added, “I assure you that it is my aim to proceed promptly with the building”.

However, when self-government came, almost unannounced, at the end of the same year, the idea of a new Commonwealth Courts building was shelved completely. In the meantime the needs have greatly outstripped the facilities of the existing court building. The Magistrates are scattered over the city. The Master usually sits in rooms rented from an insurance company.

The Territory Government, to its credit, has acted on this matter of court accommodation. But I am afraid to say that, in my view, it has acted precipitately. In its last budget the government set aside $17m for immediate construction of a Magistrates Court building of six storeys and $5m for later refurbishment of the present Law Courts building for the use of the Supreme Court. How these sums were arrived at I do not know. After the money was set aside, plans for the new Magistrates Court building were drawn up by leading architects and plans for the suggested refurbishment of the existing building were produced to the Supreme Court.

I take advantage of Sir Richard Blackburn's statement that the personal views of the lecturer should be allowed to intrude.[41] I have taken an interest in court buildings as they for some time, both as they exist elsewhere and as they might exist between Vernon Circle and London Circuit, ACT. The building constructed 30 years ago come Sunday was appropriate and adequate in those days, with one resident Judge and, I believe, two or three Magistrates. It is now quite inadequate. I am told that even then the architects were constrained by budgetary limitations.[42] Nevertheless, the Architectural Guide to Australia's Capital describes the building as a “distinguished home for the Supreme Court” inside whose “well-proportioned marbled facade the central courtyard comes as a pleasant surprise”.[43]

The centre will certainly come as a surprise if the proposed refurbishment is carried out, as it is proposed to build conference rooms in the courtyard and to roof over the courtyard partially at the upper level for offices and much needed expansion of library space.

But I earnestly commend that, before large sums of money are irrevocably committed, a strategic plan be drawn up and implemented to meet the properly assessed needs of the total ACT court system over at least the next twenty years. I say confidently that the present building is not and will never be adequate for the holding of criminal trials, according to contemporary standards. In particular, the requirements of security and proper facilities for juries to carry out their arduous and unenviable tasks can be met only by a building which has been designed to include the specific purposes of criminal trial courts. Similar considerations apply to the Library and other facilities to be shared with the Magistrates Court.

The architectural and heritage qualities of the present building would be greatly compromised not only by the proposed refurbishment but also by the dwarfing effect of a much taller building at close proximity.

There is plenty of land for court purposes on either side of the present building. The group of buildings comprising the Law Courts, the City Police Station and the Reserve Bank, is a pleasant and coherent precinct. Subject to the assessment of the needs of both Courts, it seems to me that the sensible, aesthetic, economical and obvious way to go is to construct a new building for the Magistrates on the northern side of the present building, sympathetic in size and character, and a third similar building on the southern side designed especially for criminal courts and to be shared by the Supreme Court and the Magistrates Court. The criminal courts building could be connected to the police station by a tunnel and the three court buildings unobtrusively linked to each other. It would take longer, but justice in the ACT would be better served. As it would happen, the two new buildings would be constructed where the hand of Walter Burley Griffin (or more probably that of Marion Mahoney Griffin) wrote the words “Criminal Court” and “Civil Court” on the plan that won the prize for the design of the federal capital in 1912.[44] It would be fitting to aim for their completion before the centenary of federation.

So if, in accordance with Sir Richard Blackburn's wishes, this lecture has provided some food for thought, that is one item on the menu that I hope you will chew over. Wachtler v. Cuomo[45] was never decided. It was settled a month before the date fixed for hearing. If it leaves you with a taste for things to come, so be it.

Thank you for the opportunity of paying tribute to Sir Richard Blackburn.


[1] Milirrpum & Ors. v. Nabalco Pty. Ltd. and Anor. (1971) 17 F.L.R. 141.
[2] Mabo & Ors. v. State of Queensland (1992) 175 C.L.R. 1.
[3] Sir Garfield Barwick, “The State of the Australian Judicature” (1977) 51 A.L.J. 480.
[4] The Hon. Sir Richard Blackburn, OBE, “The Courts and the Community”, Inaugural Blackburn Lecture, 21 May 1986, p.2.
[5] Jeffrey Miles, “Justice at the Seat of Government” (1992) 66 A.L.J. 555.
[6] Parliamentary Debates 1988, vol. S.l30, pp.2820-2849.
[7] Australian Capital Territory (Self-Government) Act 1988, sub-ss.34(2)-(6).
[8] See Note 5.
[9] See M.D. Kirby, “The Removal of Justice Staples”, (1990) 6 Aust. Bar Review 1.
[10] In the Matter of s.11A of the City Area Leases Act 1936 (unreported, Supreme Court of the ACT, 21 July 1989).
[11] “Review of Court Structures in the Australian Capital Territory”, a Discussion Paper prepared for the Attorney-General, Mr. Bernard Collaery, MLA, August 1990: see Terms of Reference.
[12] Response to “Review of Court Structures in the Australian Capital Territory”, February 1991.
[13] Australian Capital Territory (Self-Government) Act 1988, s.48A.
[14] ibid, s.48D.
[15] Supreme Court Act 1933, s.4(6).
[16] Magistrates Court Act 1930, s.l0D(l).
[17] Constitution Act (N.S.W.) s.56.
[18] Australian Capital Territory (Self-Government) Act 1988, sub-s.16(1), sub-s.35(2).
[19] ibid, sub-s.39(1), s.41.
[20] ibid, s.7.
[21] AIJA Seminar on Constitutional and Administrative Responsibilities for the Administration of Justice: The Partnership of Judiciary and Executive, 10-11 August 1985.
[22] High Court of Australia Act 1979, Pt. III, Administration of the High Court.
[23] Federal Court of Australia Act 1976, Pt. 11A, Family Law Act 1975, Pt. IVA.
[24] Resnik J., Managerial Judges, Institute for Civil Justice, Santa Monica, 1982.
[25] (1993) 67 A.L.J. 248.
[26] Farewell to the Honourable Sir Richard Blackburn, Chief Justice, at Canberra on Friday, 29 March 1985, p.32.
[27] As at 1991 census: Tasmania: population 452,834, number of Judges 7. Northern Territory: population 175,253, number of resident Judges 6, non-resident Judges 3.
[28] Supreme Court Act 1933, s.7
[29] See Annexure 3.
[30] e.g. Professor Duncan Chappell, “The Law and Order Debate”, paper delivered to the 14th Annual Conference of the Australian Society of Labor Lawyers, 23 May 1992; Senate Standing Committee on Legal & Constitutional Affairs, Report, “Foundations for Reform”, s.6.
[31] Jago v. District Court of NSW (1989) 168 C.L.R. 23.
[32] J. Michael McWilliams, “Our Justice Deficit”, Trial, April 1993, p.l9.
[33] Latoudis v. Casey (1990) 170 C.L.R. 534.
[34] Dietrich v. R (1992) 67 A.L.J.R. 1.
[35] John K. Powers, “The New York Experience”, Trial, April 1993, p.22.
[36] Chief Justice Wachtler is reported to have resigned following allegations of misbehaviour unconnected with the duties of his office (The Australian, 12 November 1992). Governor Cuomo is reported to be under consideration for appointment to the U.S. Supreme Court (The Times, 8 April 1993).
[37] Commonwealth v. Tate 274 A. 2d 193, cited by Powe s at p.25.
[38] In re Smiley 36 N.Y.S. 2d 87, ditto.
[39] (1992) 67 A.L.J.R. 1 at 16.
[40] Sir Richard Blackburn, “The Courts and the Community, 21 May 1986, p.28.
[41] “The Courts and the Community”, 21 May 1986, p.3.
[42] Personal communication from Mr. Roy Simpson, partner-in-charge.
[43] Royal Australian Institute of Architects, Architectural Guide to Australia's Capital, 1982, p. 4.
[44] See Annexure 5.
[45] Wachtler v. Cuomo, N.Y. Sup.Ct. No. 6034-91.