Implementation

General

In launching the Managing Justice report in February 2000, Attorney-General Daryl Williams AM QC MP noted that he supported its general thrust.

In June 2003, the Australian Government released its response to the report, addressing each of the 138 recommendations of the report. In this response, the government noted that “almost half of the Commission’s 138 recommendations are directed at procedural matters that are primarily the responsibility of the federal courts and tribunals. Some recommendations are addressed to legal practice and legal professional bodies, in particular the Law Council of Australia. Some are directed to universities and other bodies with responsibilities for legal education. The remaining recommendations are matters for the Government. Some recommendations have already been implemented”.

Download a PDF of point-by-point responses by Government to each of the 138 recommendations.

The December 2003 Federal Civil Justice System Strategy Paper, released by the Attorney-General’s Department, relied heavily on the research conducted during the Managing Justice inquiry and supported further reform based on many of theManaging Justice recommendations.

Many of the recommendations have been considered and debated in a range of different organisations and forums, and a substantial number have been implemented. 

The Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) received assent on 4 December 2009. The overarching purpose of the Act is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Under the Act, parties to a proceeding are required to conduct the proceeding in a way that is consistent with the overarching purpose.

The Act also broadens the responsibilities of the head of the Court to ensure the ‘effective’ discharge of the business of the court, in addition to their current power to ensure ‘the orderly and expeditious discharge’ of the business of the Court. The Act also introduces various powers of judges to case manage matters, including by limiting the number of witnesses called, and referring matters to alternative dispute resolution.

A number of the amendments in the Act are consistent with recommendations made by the ALRC in Managing Justice which generally supported the further development of federal court and tribunal procedures to encourage prehearing conferences and  other communication and contact between relevant experts

Education and Training (ch 2)

The Commission’s recommendations aimed at improving the design and quality of legal education, including the call for a review of teaching and curriculum in Australian law schools (recommendation 4), influenced the decision by the Australian Universities Teaching Committee (AUTC) of the Department of Education, Training and Youth Affairs (DETYA) to include law among the first three disciplines in its project to identify examples of best practice in teaching and learning in Australian universities. The Committee’s ‘stock take’ of legal education culminated in the release of a report Learning Outcomes and Curriculum Development in Law in early 2003.

Recommendation 6 proposed a process for facilitating the establishment of an Australian Academy of Law as a means of involving all members of the legal profession—students, practitioners, academics and judges—in promoting high standards of learning and conduct and appropriate collegiality across the profession. An inaugural meeting of the Foundation Fellows of the Australian Academy of Law was held in Sydney in June 2005.The Academy was launched formally in July 2007, and is working towards the goals set out in its constitution.

Recommendation 8, which sought the establishment of an Australian Judicial College , has been implemented. In July 2001, following a positive report by a working group consisting of judicial officers from the Commonwealth and state courts, and representatives of the Commonwealth, NSW, Victorian and Western Australian governments, the Standing Committee of Attorneys-General (SCAG) indicated support for the proposal. The National Judicial College of Australia was launched in August 2002, and commenced courses in the second half of 2003. It is hosted by the Australian National University in Canberra , although it conducts courses in various locations around Australia .

Recommendation 10 proposed the establishment of a Council on Tribunals as a national forum for tribunal leadership, involving the heads of federal and state tribunals engaged in administrative review and the President of the Administrative Review Council (ARC). The Administrative Review Council, with support from the various tribunals, coordinated the establishment of the Council of Tribunals, which met for the first time in June 2002. At this meeting the Council decided to expand to a Council of Australasian Tribunals (made up of Commonwealth, State, Territory and New Zealand tribunals).

The Council’s objects include the development of model procedural rules, standards of behaviour and conduct for members and training and support for members of tribunals.

Judicial discipline (ch 2)

Recommendation 12 called for both Houses of Parliament to establish a protocol governing the receipt and investigation of serious complaints against federal judicial officers. In March 2002, the Prime Minister made reference to the recommendation in Parliament and indicated that it was under active consideration by the Australian Government. The Attorney-General’s Department prepared a draft protocol that was circulated to various federal courts for comment, but has not been implemented.

On 7 December 2009, the Senate Legal and Constitutional Affairs Committee released a report on Australia’s Judicial System and the Role of Judges. The report contains a number of recommendations relating to judicial misbehaviour, including that the Australian Government establish a federal judicial commission modelled on the Judicial Commission of New South Wales (Recommendation 4).

The Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 (Cth) is a private member’s Bill, sponsored by Duncan Kerr MP. The Bill was introduced into the House of Representatives on 22 February 2010. The objective of the Bill is to establish an independent Parliamentary Commission to test complaints of judicial misbehaviour or incapacity referred to it by either House of the Parliament.

The ALRC considered complaints against judges in ALRC Report 89, including whether the Australian Government should establish a federal judicial commission modelled on the Judicial Commission of New South Wales. However, the ALRC concluded that such a model would not be permitted under the Australian Constitution. The ALRC therefore recommended that:

• Each federal court and tribunal should develop and publish a protocol for defining, receiving and handling bona fide complaints against judicial officers and members, as well as complaints about court systems and processes (Recommendation 11); and
• The federal Parliament should develop and adopt a protocol governing the receipt and investigation of serious complaints against federal judicial officers. For these purposes, a ‘serious complaint’ is one which, if made out, warrants consideration by the Parliament of whether to present an address to the Governor-General praying for the removal of the judicial officer in question, pursuant to s 72 of the Australian Constitution (Recommendation 12).

By 31 December 2010, The Parliamentary (Judicial Misbehaviour or Incapacity) Commission Bill 2010 (Cth) had not proceeded beyond its first Reading in the House of Representatives.

Legal practice (ch 3)

Recommendation 13 urged that priority be given to the development of national model professional practice rules for the legal profession. The Law Council’s Model Rules of Professional Conduct and Practice were reviewed in March 2002. The revised version adopted clearer obligations to further the proper administration of justice consistent with Managing JusticeRecommendations 15 and 18. The revised rules have been adopted in South Australia and Queensland (NSW, ACT and Northern Territory have rules based on the previous version of the Model Rules).

Consistent with the thrust of the recommendations in ALRC 89, there has been strong movement to the development of a national legal profession. In July 2004, the Standing Committee of Attorneys-General (SCAG) endorsed model provisions to regulate legal practitioners, and lift current barriers to the practice of law across state and territory borders. The National Legal Profession Model Bill and Model Regulations provide for:

• a uniform standard for law degrees and practical legal training and the recognition of those qualifications across jurisdictions;
• legal practitioners to practise interstate with one practising certificate;
• uniform definitions of misconduct and preventing practitioners struck off or penalised in one jurisdiction from simply moving to practice law in another jurisdiction;
• uniform rules dealing with trust accounts and fidelity funds;
• a nationally consistent set of provisions facilitating the establishment of incorporated legal practices and multidisciplinary practices;
• standardisation of the requirements for disclosing information on legal costs to clients; and
• creation of a nationally uniform system governing the entitlements of foreign lawyers to practise the law of their home country in Australia .

The Model Bill is subject to a continuous improvement process, and some amendments have been made since it was first endorsed. Each of the states and territories has implemented, or is about to implement, the model provisions (in April 2008, the South Australian and Tasmanian Parliaments had passed the amendments, but they had not commenced operation, and the relevant Bill is expected to be passed by the Western Australian Parliament very soon).

Model litigant standards (ch 3)

In reviewing the Australian Government’s Legal Services Directions on the Commonwealth’s Obligations to Act as a Model Litigant, the Attorney-General’s Department took into consideration relevant recommendations of ALRC 89 (Recommendations 23, 24, 25). Consistent with these recommendations, the Legal Services Directions 2005 (Cth) incorporate provisions relating to the consequences of non-compliance with the Directions. While the Directions do not adopt a rule-commentary approach as recommended by the ALRC, the Attorney-General’s Department has issued supplementary material to the Directions providing guidance and examples of application of the Directions.

Costs (ch 4)

Recommendation 26 dealt with requirements for solicitors and barristers to disclose actual, expected or charged fees to clients. Uniform laws on disclosure requirements will be put into place by the SCAG model provisions to facilitate a national legal profession (for further details, see above under ‘Legal Practice’).

The Federal Magistrates Court, which commenced operation on 30 July 2001, provides for event-based fee scales for party-party costs. The Government’s response to ALRC 89 noted that the Attorney-General’s Department has established a working group examining the implementation of event-based fee scales in family law. The December 2003 Federal Civil Justice Strategy Paper has recommended that all of the federal courts continue to explore implementation of event-based fee scales.

Legal assistance (ch 5)

Recommendations 37 and 38 encouraged pro bono work and were directed at the legal profession and legal education and practical legal training. Further work on pro bono issues was completed with the 2001 Report of the National Pro Bono Task Force (chaired by ALRC President Professor David Weisbrot). Arising from the work of the Task Force, the Government established the National Pro Bono Resource Centre in October 2002. Key objectives of the Centre are the promotion of pro bono work throughout the legal profession and providing practical assistance and support to existing and potential pro bono service providers. The National Pro Bono Resource Centre has also identified a number of possible projects aimed at promoting law students interests in pro bono, including issues of relevance to pro bono within law school curriculum and/or practical legal training.

Recommendation 47 stated that legal aid commissions should investigate establishing self-funding arbitration schemes for family law property disputes, with a fee calculated by reference to the value of the property in dispute. Legal Aid Queensland operates a successful arbitration scheme for family law property disputes. Arbitration in family law property disputes is under consideration by the Family Law Council.

Recommendation 52 called for the establishment of a ‘first port of call’ online information service to act as a central point of reference and referral for anyone seeking general information on a civil legal matter. In June 2001 the Attorney-General launched Australian Law Online, which combines a number of 1800 phone hotlines and online information.

The Government has implemented recommendation 58 by evaluating the Family Law Assistance Program at Dandenong to determine whether it should expand the program nationally. The evaluation indicated the program at Dandenong should receive continued funding, and that expansion of the program was supported should additional funding become available.

Expert witnesses (ch 6)

The Commission made a number of recommendations in relation to expert witnesses (recommendations 62-67, and other specific to particular courts and tribunals in chapters 7,8 and 9). Elements of the proposed approach included:

• prehearing conferences and other communication and contact between relevant experts;
• the development of a generic template code of practice for expert witnesses;
• joint instruction of expert witnesses;
• procedures to adduce expert evidence in a panel format.

The Federal Court’s 1998 expert witness guidelines, that were generally supported during the Managing Justice inquiry, have been revised to take into account a number of issues raised by the ALRC.

The Family Court of Australia has undertaken an extensive review of its expert witness procedures. The Family Court Rules 2004 and accompanying practice directions have introduced extensive changes to the way in which expert witnesses are consulted and used in family law proceedings. Many of the changes recommended in Managing Justice have been adopted.

The Federal Magistrates Court Rules 2001 have adopted the Federal Court practice direction guidelines and a number of theManaging Justice recommendations for expert witnesses.

The Administrative Appeals Tribunal is examining the issue of expert evidence with a view to developing a specific practice direction on the issue.

Federal Court (ch 7)

More than half the recommendations specifically related to the Federal Court have been implemented, in particular:

• The Federal Court has published a national guide to the Court’s individual docket system on the Court’s website. The guidelines outline a protocol for busy dockets, which addresses recommendation 71 and part of 72.
• Federal Court of Australia Act was amended to allow a single judge to dismiss an appeal for want of prosecution, or for failure to comply with a direction of the Court (recommendation 73).
• Facilitative meetings between representatives from Indigenous representative bodies, the Australian, State and Territory Governments, the Federal Court and the National Native Title Tribunal are held at national and state levels in order to better manage native title cases (recommendations 74 and 75).

• The Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) received assent on 7 December 2009. The Act amends the Federal Court of Australia Act 1976 (Cth) to allow the Federal Court to refer a proceeding, or one or more questions arising in a proceeding, to a referee for report. This will be useful in many cases, including where technical expertise is required. In ALRC Report 89, the ALRC recommended that the Federal Court should consider the use of referees (or ‘assessors’) in native title proceedings (Recommendations 76 and 77).

• The Federal Court has advised that special listing and filing rules now apply to immigration matters in all registries(recommendation 83).
• The Federal Court has reviewed the operation of its expert evidence rules and guidelines, and will continue to consult with the legal profession and user groups on issues concerning expert evidence (recommendations 84 and 85).
• Federal Court Practice Note 17, issued on 20 April 2001, gives effect to the Commission’s recommendation on electronic discovery and discovery of electronic documents (recommendation 89).
• Federal Court Rules was amended on 22 December 2000 to provide that subpoenas may only be issued by leave in the manner proposed (recommendation 91).

Recommendation 85 stated that the Federal Court should continue to develop appropriate procedures and arrangements, in consultation with legal professional and user groups, to allow judges to benefit from expert assistance in understanding the effect or meaning of expert evidence.

The Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) allows the Federal Court to refer a proceeding, or one or more questions arising in a proceeding, to a referee for report. This will be useful in many cases, including where technical expertise is required. In Managing Justice: A Review of the Federal Civil Justice System (ALRC 89, 2000), the ALRC recommended that the Federal Court should consider the use of referees (or ‘assessors’) in native title proceedings (Recommendations 76 and 77).

The overarching purpose of the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) is to facilitate the just resolution of disputes according to law; and as quickly, inexpensively and efficiently as possible.

Under the Act, parties to a proceeding are required to conduct the proceeding in a way that is consistent with the overarching purpose. The Act also broadens the responsibilities of the head of the Court to ensure the ‘effective’ discharge of the business of the Court, in addition to their current power to ensure ‘the orderly and expeditious discharge’ of the business of the Court. In addition, the Act also introduces various powers of judges to case manage matters, including by limiting the number of witnesses called, and referring matters to alternative dispute resolution.

A number of the amendments in the Act are consistent with recommendations made by the ALRC in Managing Justice which generally supported the further development of federal court and tribunal procedures to encourage prehearing conferences and other communication and contact between relevant experts.

Family Court (ch 8)

In September 2000, the Family Court of Australia released a report by its Future Directions Committee. Many of the recommendations in the report were consistent with those in ALRC 89, particularly with regards to case management. A number of reforms that have since taken place in the Court implement changes that were proposed in ALRC 89, in particular:

• Adoption of court rules and practice guidelines to facilitate electronic filing, attendance, service, discovery and disclosure (recommendation 60).
• Establishment of the new Casetrack information management system, shared with the Federal Magistrates Court (recommendation 61).
• The adoption in 2002 of the Caseflow model for pre-trial case management (recommendations 111, 112, 113, 114).
• Establishment in 2000 of benchmarks for court functions, including judicial activity (recommendation 115).
• complete revision of court rules with the introduction of the Family Law Rules 2004 which incorporate changes such as: costs orders and penalties for failure to comply with disclosure rules (part recommendation 104); improved support for the new case management system (recommendation 111, 112); and major changes to the expert evidence procedures (recommendations 62-67 and 105-106).
• The expansion to other registries of the procedures adopted in the Magellan Project for matters involving allegations of child abuse, facilitating early access to Family Court reports (recommendation 107).
• The establishment of a judicial docket case management system in 2008 (recommendation 114).

Recommendation 109 suggested that the Family Law Council be asked to report on whether the Family Court should be able to refer to social science literature when making determinations as to the ‘best interests of the child’. At the Attorney-General’s request, the Family Law Council provided advice on this question in early 2001. The Family Law Council was of the opinion that there would be more disadvantages than advantages in amending the Family Law Act to specifically allow recourse to relevant research findings. However, the Council did support utilisation of social facts by judges, and suggested consideration of the preparation and maintenance of a database summarising relevant social research.

Merits Review Tribunals (ch 9)

A number of the recommendations in ALRC 89 related to the Government’s proposed Administrative Review Tribunal, a ‘super tribunal’ which would have replaced the Administrative Appeals Tribunal, the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal. In February 2001 the Senate rejected the Administrative Review Tribunal Bill 2000. On 6 February 2003 the Government announced that it would not seek to introduce the Bill in the current Parliament.

The Administrative Appeals Tribunal Bill 2004 was passed by Parliament in March 2005, and the majority of the Administrative Appeals Tribunal Amendment Act 2005 (Cth) commenced operation in May 2005. The aim of the Act is to improve operations without fundamental change to the purpose, structure or function of the Tribunal. A number of the amendments are based on recommendations from ALRC 89, including:

• allowing the AAT President to authorise conference registrars to issue directions as to the procedure to be followed at, or in connection with, the hearing of a proceeding before the hearing has commenced (Recommendation 125);
• imposing an obligation on agency decision-makers to assist the Tribunal to reach its decision (Recommendation 121);
• allowing the AAT President to authorise members to give a party leave to inspect a document produced under summons (at present this can only be done by a Presidential or senior member) (Recommendation 126).

Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth)

The Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) received assent on 7 December 2009. The Act amends the Federal Court of Australia Act 1976 (Cth) to allow the Federal Court to refer a proceeding, or one or more questions arising in a proceeding, to a referee for report. This will be useful in many cases, including where technical expertise is required. In ALRC Report 89, the ALRC recommended that the Federal Court should consider the use of referees (or ‘assessors’) in native title proceedings (Recommendations 76 and 77).