Responsibility for Court Administration

I R Scott, The Future of Judicial Administration, Ch.7, Seminar on Constitutional and Administrative Responsibilities for the Administration of Justice: the Partnership of the Judiciary and Executive, Australian Institute of Judicial Administration, 1985

Administration of court – responsibilities of judges and administrators – partnership – role of the attorney- general – independent commission

Professor Scott uses the Victorian Civil Justice Committee report of 1984 as his focus for discussion of the application of organization theory and the courts. He looks at the division of responsibilities between the judiciary and the executive and distinguishes US experience from Australian and Canadian. The roles of the attorney-general and the Lord Chancellor in England are discussed and the different functions they fulfill, as head of the legal community and as head of courts. The 'politics' of judicial administration is examined by reference to financial administration of the courts and demands for efficiency and accountability. The paper is an early description of the conflicting issues of public administration, law and management faced by the courts.

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Sir John Young, 'The Roles of the Judiciary and the Executive in the Administration of the Courts’ Inaugural Biennial Conference of Higher Courts' Administrators, Australian Institute of Judicial Administration, 1990

Separation of powers – responsibility for management of courts – judicial independence – partnership of judiciary and administrators

Sir John Young, Chief Justice of the Victorian Supreme Court, 1974 – 1991, states 'obviously judges should have no more contact with the political executive than is absolutely necessary'. He goes on to discuss their relationship with the 'administrative executive', the public service, distinguishing between those of its members who are political advisers ('minders' and ministerial advisers) and those who are intended to be independent of the political executive and apolitical. The independent public servant is intended 'to provide the courts with what they need to perform their task and to assist them to act economically, efficiently and effectively'. There is a need for administrators to understand judicial culture and for judges to understand administrative culture and for the dialogue to go beyond judicial independence. He recognizes that 'it is not possible to arrive at a satisfactory distinction between judicial and non-judicial or administrative tasks', that there will be significant overlap. The paper concludes with discussion of four areas of possible overlap, caseflow management, records and systems management, budget and fiscal management and space and equipment management.

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R E McGarvie, 'Judicial Responsibility for the Operation of the Court System' (1989) 63 Australian Law Journal 79

Court administration – partnership between judiciary and executive – judiciary the senior partner – risks to independence of administration – structure of court management committee

Sir Richard McGarvie was a judge of the Supreme Court of Victoria between 1976-1992 and Governor of the State from 1992-1997. In this paper he speaks of the judiciary's 'inescapable responsibility to ensure their courts run with such economy, efficiency and effectiveness as is consistent with the maintenance of an independent judiciary and high standards of justice'. The underlying premise of acceptance of judicial responsibility is that judges are the trustees of the court system, the law an its values. For McGarvie this is a practical justice, unachievable if delays and expense prevent ordinary people using it. If the courts are unable to provide practical justice, governments will be forced to provide tribunals 'designed to resolve disputes quickly and cheaply', and often created beyond the judicial branch of government. 'The community as well as the court system will be the loser'.

McGarvie's theme is that leadership is required to manage the changes necessary to deliver practical justice. This leadership should come from a partnership of judiciary and executive, with the judiciary the senior partner, responsible for providing leadership. His view is that maintenance of judicial independence requires judges to take the senior role, atherwise they may be treated as senior staff who do specialized public work. They must be senior as well to avoid political pressure likely to be exerted if the courts become inefficient and uneconomic.

In the second half of the paper the risks of judicial involvement in administration are assessed, including exposure to executive influence in decision making, time constraints for judicial work and lack of administrative experience. Finally, McGarvie considers the possible structure of a court management committee, consisting of a council of judges, each with a portfolio of responsibility and working with administration staff who would be answerable to a chief executive officer employed by the committee.

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I R Scott, 'Court Administration: the Case for a Judicial Council'. Inaugural lecture as Barber Professor of Law in University of Birmingham and Director of the Institute of Judicial Administration, 1978

Separation of powers – financial dependence of judicial branch – problems with civil service management model – comparison with independent judicial council

Professor Scott describes the process of implementing the recommendations of the Beeching Report of 1969, when administrative responsibility for the English courts was transferred to a judicial department headed by the Lord Chancellor. When he was speaking in 1978 the new system was failing for want of resources and breakdowns in communication between the civil service and the judges. Professor Scott says the problems were due to the Beeching Report's insistence on 'a closed system' of administration based on a distinction between judicial and non-judicial staff. In Scott's view there can be no clear line between matters suitable for judicial control and those suitable for executive control. The problems were exacerbated by the new court service quickly becoming an integral part of the civil service, terms the 'Whitehall Monster Syndrome' by Scott. This meant a 'generalist' approach was adopted to administration of the courts.

The English model is compared to judicial councils used in some US jurisdictions. These councils are composed of a small number of judges supported by non-judicial staff. Scott heralds the US model as signalling the establishment of staffs of professional administrators within court systems. Scott sys some restructuring of the judiciary itself would be necessary to achieve the same system in England. He recommends greater judicial involvement in administration in England, to reassert that the judicial department is a third and equal part of government, demanding independence from the executive. One way to achieve such independence in England would be to establish a council of judges with adequate resources to take responsibility for the judicial department of government. Members of the court service would become the staff arm of the council, working for the third arm of government and not for the executive.

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Garry D Watson, 'The Judge and Court Administration', Allen M Linden (ed), The Canadian Judiciary Osgoode Hall Law School, York University, Toronto, 1976

Relations between judiciary ad executive – three models – the US, England after Beeching and Canada – need for separation from ministry responsible for litigation

Professor Watson compares two different models of court administration, those used by some juridictions in the USA and the English model after the Beeching Report of 1969. While the USA insists on separation of powers, with judges responsible for the management of the courts, the elective system in some states means the independence of judges may placed at risk by election for short fixed terms. There is a dichotomy between the federal and state systems in the USA. Since 1939 the federal judicial system has been an entire integrated system responsible only to itself and included in the federal budget. Watson calls this the '3rd branch model'. Such independence does not always exist at state level, even where a state judiciary has effective control of its administration, because the courts are frequently subject to severe budgetary control.

The Beeching Committee recommendations are in marked contrast to the US models. The Committee took the view that one minister should assume responsibility for court administration. This was to be coupled with an efficient administrative service. The Lord Chancellor was to be the minister responsible with six circuit administrations immediately below him. To accommodate judicial independence presiding judges were to be appointed in each circuit, and they were to allocate judicial resources within the circuit.

The principal criticism of the Beeching reforms was that they concentrated power in the hands of the Lord Chancellor's Department. The reasction to the Beeching reforms is compared to the reaction to proposals made by the Ontario Law Reform Commission in Canada in 1973. The Commission envisaged a system in which a provincial director of court administration was appointed with support staff reporting directly to the Attorney General and working with the judges, but not part of either organization. Some key differences between the Beeching and the Law Reform Commission's proposals are identified, including, 1. In Canada the Attorney General had indicated that there would be no independent administration, the court administrators were to be part of the ministry; 2. The Attorney General in Canada is a litigant before the courts whereas the Lord Chancellor is not; 3. The position of the Lord Chancellor is unique, as a judge and head of the judiciary.

Finally the paper considers four structural alternatives for court administration:

• to place executive responsibility for court administration in the hands of a minister who has nothing to do with litigation in the courts, possibly a minister for justice;
• retain executive responsibility for court administration with the Attorney General but carve out a broad area relating to caseload and assign that to the judiciary;
• assign full responsibility to an independent body responsible only to the legislature;
• build a judge into a new executive based court administration service.

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Perry S Millar and Carl Baar, 'The Search for Alternate Solutions to the Division of Authority', The Constitutional Setting for Judicial Administration, Judicial Administration in Canada, 1981

Separation of powers – independence of judiciary – judge as administrator- political or non-political CEO

The authors divide consideration of court administration into two main categories, judicially controlled and executive centred. They present a chart on which they illustrate the continuum between the two models and discuss the advantages ad disadvantages of all points on the continuum by reference to examples from Canada, England, the USA and Australia.

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Perry S Millar and Carl Baar, 'Thinking about Courts: Organization Theory and Judicial Distinctiveness', Judicial Administration in Canada, 1981

Judicial administration – history – jurisprudence – organizational theory – courts as complex organizations - setting objectives for systems management
- courts as bureaucracies

Contemporary management theory stresses the importance of defining goals and objectives. In this, Chapter 2 of their work on judicial administration in Canada, the authors examine the history and jurisprudence underpinning courts to assist in defining the goals and objectives for judicial administration. They note that as complex organizations courts also share characteristics with other complex 'work-processing' organizations. They then subject courts to systems analysis, pointing out that courts' interdependence with other organizations must be taken into account in planning for them. There is also acknowledgement that court systems have a mix of bureaucratic and non-bureaucratic characteristics and the authors ask 'can courts survive the demands of complex organizations?' Their answer is, 'yes, application of organization theory to courts is more than an intellectual exercise: it reflects the reality and needs of contemporary courts'.

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Thomas W Church and Peter A Sallmann, 'Issues of Court Governance', Ch.1, Governing Australia’s Courts, Australian Institute of Judicial Administration, 1991

Models of court governance – Australia – from executive control to independent administration

The authors use Australian examples to examine three models of court governance: the 'traditional' model as part of a generalized executive department, the'separate executive department' model and the model of substantial administrative autonomy. Each is described and its advantages and disadvantages discussed by reference to issues of judicial independence and accountability. The theoretical models are critiqued against systems in operation and the rhetoric reduced.

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Thomas W Church and Peter A Sallmann, 'The Relationship between Structure and Process', Ch.5, Governing Australia’s Courts, Australian Institute of Judicial Administration, 1991

Administrative structure of court – impact on process and operation of court

Professors Church and Sallmann look at how the governing structure of a court system affects the operation of the court. Their particular emphasis is on relationships between the judiciary and the executive. They examine three systems, the generalized executive control of Victoria, the independent courts authority of South Australia and the semi-independent system of the Family Court of Australia. Court budgeting, staffing, accommodation and case processing as considered. The authors find that the Attorney General retained a role in budgeting decisions in all systems, and that the more independent the system the more chief judicial officers were involved in senior appointments and training of administrative staff. Structure of governance played a much lesser role in decisions concerning court accommodation and case processing. On the whole accommodation remained an executive controlled function and case processing a judicial function. The authors' general conclusions were that courts acquire more 'distinctiveness' in the mind of government when operating independently of the executive and that independence encourages judges to participate in policy development for the court.

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Thomas W Church and Peter A Sallmann, 'Reflections on Court Governance, Ch.6, Governing Australia's Courts', Australian Institute of Judicial Administration, 1991

Models for governance of autonomous courts – by chief judge, collective of judges or executive committee of court

In the final chapter of their work on Governing Australia's Courts Professors Church and Sallmann reflect on the question 'who should run the courts?' After expressing a preference for judicial autonomy they examine the structures desirable for intra and inter-court governance. Within the court they identify three possible models, governance by the chief judge, by a collective of all judges or by an elected or appointed executive committee of judges. The authors turn to US experience to discuss governance of systems beyond the internal affairs of a court since Australian experience is limited. Possible models include governing councils of a number of courts selected by election, appointment, rotation, seniority or by virtue of other offices held. The organization of relations with government and the public by the governing council is also considered with models in which the council approaches parliament through the Attorney General or directly, through a parliamentary committee. Such a 'judge-driven' system poses challenges for effective liaison with the public.

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Peter Sallmann, 'Governing the Courts' paper delivered at AIJA conference July 2000, based on Peter A Sallmann and Richard T Wright, Going to Court, Discussion Paper on Civil Justice in Victoria, Department of Justice, Victoria, 2000

Governance of courts – update on Australian position – April 2000 – self-administration’ recommended over traditional, executive department model

At the Australian Institute of Judicial Administration annual conference in July 2000 Professor Sallmann updated views he had expressed in 1991 by reference to the same three court systems, Victoria, South Australia and the federal system, including the Family Court of Australia. The paper asked 'who does and who should run the courts?'. By 2000 Australian jurisdictions had experimented with five different types of governance, the 'traditional' generalist executive department, the 'separate department', a system in which each court controls its own administration under the leadership of its chief justice, an 'autonomous collegiate'system and the separate courts administration authority led by a judicial governing council. Professor Sallmann reports on Australian experience with each of the systems and reports that 'the general tendency of those undertaking change has been to adopt a form of judicial autonomy in governance arrangements'. He concludes, 'the traditional, "partnership" model of courts'governance is not well regarded in Victoria, particularly by the judiciary. There are moves for reasons of judicial independence and improved practical operation of the system towards a more judicially autonomous approach'. He concludes, from the federal system, '"self-administration"is the golden key to operational effectiveness and accountability'.

L inks:

Laurie Glanfield, Director-General of NSW Attorney General's Department, 'Governing the Courts: Issues of Governance Beyond Structure' in which Mr Glanfield argues in support of the traditonal, executive department model.
http://www.aija.org.au/publications

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The Honourable Mrs Justice Susan Denham, Supreme Court Of Ireland,
‘ The Diamond In A Democracy: An Independent, Accountable Judiciary’, Keynote Address Annual Conference of The Australian Institute of Judicial Administration July, 2000 http://www.aija.org.au/publications

Independence of judiciary – meaning – separation of powers - changing role of judiciary – accountability – changing law, changing work of courts - Independence and court governance

Justice Denham's theme Is: 'The independence of the judiciary is a right of the people and of a person and a duty of the judiciary and a judge. The independence of the judiciary exists in order that a litigant may be confident of receiving impartial justice. On this confidence rests the power of the judiciary'. Her paper Denham speaks of the need to maintain judicial independence in a changing world. She says: 'Society is transforming and with it the democratic institutions. All institutions are subject to scrutiny. The checks and balances between the people and the institutions of state have been affected by rapid growth and development. In modern society the people and institutions are relating to each other in changing ways. In these transforming times the role of the judiciary is developing also. It is of immense importance to society that the independence of the judiciary be protected, whilst at the same time having a modern, accountable judiciary'.

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John A Martin, Brenda J Wagenknech-Ivey & Brian Lynch, Four Reasons Why Judicial Leaders Should Be Involved with and Support Strategic Planning in Their Courts (2001) 40(2) Judges Journal 4-8
John Martin is the Director of Justice System Programs of the Center for Public Policy Studies, Denver

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The Hon Justice G L Davies, The Reality of Civil Justice Reform: Why We Must Abandon the Essential Elements of Our System (2003) 12(3) Journal of Judicial Administration 155-171

Justice Ronald Sackville, From Access to Justice to Managing Justice: the Transformation of the Judicial Role (2002) 12(1) Journal of Judicial Administration 5-24

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The Hon John Doyle, The Judicial Role in a New Millenium (2001) 10(3) Journal of Judicial Administration 133-148
Consideration of changing concepts of the judicial function goes beyond consideration of changes in the way the courts' traditional functions are performed.

Elizabeth Handsley, Issues paper in Judicial Accountability (2001) 10(4)Journal of Judicial Administration 180-226
Ms Handsley responds to a request from the Australian Institute of Judicial Administration for an issues paper on judicial accountability.

Judge Morton Denlow, Breaking Impasses in Settlement Conferences: Five Techniques for Resolution (2000) 39(4) Judges Journal 4-10

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