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Managing change in the new environment - AIJA Asia-Pacific courts conference



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OCT 02 '97 03:46PM ATT GENERALS OFFICE * 1 · ' ATT GENERALS OFFICE

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I I Q s )

The Hon Daryl Williams AM QC MP Attorney-General

and

Minister for Justice

“Managing Change in the New Environment - AIJA Asia-Pacific

Courts Conference”

Introduction

1. Honourable Chief Justice Brennan, Honourable Chief Justice Yong Pung

How, Honourable Chief Justices, Your Honours, distinguished guests.

2. It gives me great pleasure to be here to welcome you to the 1997 Australian

Institute of Judicial Administration Asia-Pacific Courts Conference.

3. First, let me welcome you all to Sydney.

It is a wonderful city and I hope that you take the opportunity, during your stay

here, to see some of the sights it offers.

4. As you all know, Sydney will be hosting the 2000 Olympic Games.

I do hope that you will be able to come back to this city in the year 2000 to

enjoy those events.

5. The year 2000 is an important time.

Inaugural Ceremony

Welcoming Address

8.45am

22 August 1997

Sydney Convention Centre Darling Harbour

Parliament House, Canberra ACT 2600 Telephone (06) 277 7300 Fax (06) 273 4102

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Not only because of the Olympic Games here in Australia, but also because it is

the commencement of a new millennium.

6. It is not just another year.

It is the symbolic commencement of a new era - an era in which the pressures of

globalisation, social change, scarcity of resources and calls for accountability

will place new and increased demands on all the institutions of society.

7. It is an era in which the scrutiny of - and the demands on - the courts and

the judiciary will be heightened.

8. I congratulate the Australian Institute of Judicial Administration and the

Subordinate Courts of Singapore for their foresight in organising this

Conference, with its focus on “Managing Change in the New Environment”.

9. It is clearly a focus not just on the courts themselves - but on their place

and role in society.

10. The Conference’s topic is relevant not just in Australia but also

internationally.

The issues are of particular relevance to the Asia-Pacific region - as

demonstrated by the fact that so many distinguished people from our region are

attending this Conference.

11. Ia m particularly pleased that the Australian Government - through

AusAID, the Department of Foreign Affairs and Trade, AUSCRIPT and my

own Department - has been able to play a part in supporting the organisation of

this Conference.

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12. In the Asia-Pacific Region, the second half of this century has witnessed

one of the most extraordinary economic transformations in history.

13. Internationally, the significance of the region, and the scope and number of

links between it and other world economies will continue to increase.

Continued economic transformation will have profound consequences for

domestic and international law.

Conferences such as this help to cement the links between the nations of the

Asia-Pacific region and assist the courts of the region to learn from each other’s

experiences and to exchange ideas.

Courts and the community

14. Today I want to make a few remarks about the crucial importance of

ensuring accountability of the courts while at the same time maintaining the

independence of the judiciary.

15. It is important to recognise that courts can no longer have an inward focus

that concentrates only on the processing of individual cases.

16. Increasingly society is asking questions of the courts and demanding an

understanding of - and accountability for - the judicial processes.

These pressures will not abate.

17. It is essential, therefore, for the courts to be outward looking and to

recognise that they are part of the wider society.

But this outward focus should not be defensive.

The courts need to ensure that they are as proactive as possible in performing

their vital roles in society, that they promote efficiency and effectiveness in their

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processes, that they more effectively support the role of law and that they

promote and underpin the independence of the judiciary.

Independence of the judiciary

18. Independence of the judiciary is an essential tenet of a free society.

Independence of the judiciary is a key to the safety and security of modem

society and yet it is a little understood concept - even in countries that regard it

as a linchpin of their governmental system.

19. It is also important to recognise that independence of the judiciary is vital

for economic stability and progress.

Countries seeking investment need to be able to assure potential investors that

they can expect to be treated according to the mle of law.

Independence of the judiciary is an essential ingredient of the maintenance of

the rule of law.

20. In 1995, the 6th Conference of the Chief Justices of Asia and the Pacific

adopted the Beijing Statement of Principles of the Independence of the Judiciary

in the LAWASIA Region, which says that:

“The maintenance of the independence of the Judiciary is essential to the

attainment of its objectives and the proper performance of its objectives

and the proper performance of its functions in a free society observing the

Rule of Law.” 1

21. Independence of the judiciary is critical.

Beijing Statement o f Principles of the Independence of the Judiciary in the LAWASIA Region, at 1.

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But it is also a fragile concept that must be strengthened, by promoting

understanding of the concept throughout society and - where necessary - by

constitutional amendment.

22. In Australia, independence of the federal judiciary is guaranteed by the

Constitution.

In many countries the judiciary is not well-protected constitutionally.

23. But even where the independence of the judiciary is constitutionally

entrenched, the value of this can be impeded by a lack of understanding of the

full meaning and implications of the concept.

24. Independence of the judiciary must be real and not merely formal.

There is a need for a strong and vibrant judiciary in all countries.

25. In Australia initiatives are being undertaken to help develop an

understanding of the concept of judicial independence - both in Australia and in

the wider region.

26. The Judicial Conference of Australia has been given a grant by my

Department to conduct a very practically oriented research project into the basic

notion of judicial independence and its value to the community in a modem

democratic society.

The project has two main focuses.

The first is to produce materials for use by members of the Judicial Conference

- that is, judges in Australian courts - on the issue of judicial independence and

the rights and responsibilities it entails for the judiciary.

The second is to facilitate a broader community understanding of the conceptual

basis for, and the importance of, judicial independence.

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I understand it is intended to produce briefing materials for the community,

parliamentarians and the media on the issue.

27. This project is a very good example of something I referred to earlier - and

that is the need for the courts to focus not only on themselves but also on their

role in society.

28. I would also like to mention another initiative - one which is focussed not

solely on Australia but is more broadly on Commonwealth nations.

29. At the 1996 meeting of Commonwealth Law Ministers I proposed that the

concept of judicial independence was an issue worthy of international

consideration within that forum.

30. I am pleased that my suggestion received unanimous support amongst the

Law Ministers from all Commonwealth nations represented at that meeting.

31. A Working Party of the Commonwealth Secretariat has been established to

investigate matters that affect the independence of the judiciary, the status and

quality of the judiciary and the rule of law.

The Working Party will analyse the present state of the law and administration

amongst Commonwealth countries to assist them to identify practice that are

appropriate to protect the independence of the judiciary and the rule of law in

their countries.

The Working Party will also review practical steps that have been taken to

promote the independence of the judiciary and, if appropriate, propose new

initiatives to promote the independence of the judiciary.

May I mention a third initiative.

I understand that Chief Justice Brennan will be launching proposals to hold

regional seminars on judicial independence and will mention them today.

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I wish you to know that theses proposals have the full support of the Australian

Government.

32. When we talk about independence of the judiciary we need to be clear

what we are talking about.

33. Independence of the judiciary means impartiality in the exercise of judicial

power.

It means that judicial decisions should be made according to the law and that

judicial power should not be subject to other influences - such as political

power, government policy or money.2

34. However, as Justice McGarvie has said, it is important “not to cast a good

principle too widely.”

Apart from the independence required to ensure impartiality in exercising

judicial power, judges are not - and should not be - entirely free of any

constraints.3

35. One important question that is often posed is whether judicial

independence means that judges should be free to speak out publicly on any

issue.

36. In June 1996, the House of Lords held a debate on this issue.

During that debate, Lord Lowry said:

“Judges should be independent, but that does not mean that they should be

independent to do and say what they please. Some degree of self-denial

must be accepted as a necessary burden of office.”4

2

3

See Nicholson, R.D., “Judicial Independence & Accountability: Can They Co-Exist?”, 67 ALJ 404 at 405. McGarvie, J, "The Ways Available to the Judicial Arm of Government to Preserve Judicial Independence”. Journal o f Judicial Administration (1992) 1 236 at 237.

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37. It is important that the judiciary should, on appropriate occasions, explain

to the community the work that judges do, and how the courts function as an

integral part of the democratic process.

38. However, the courts, in demanding that their role be respected, must also

respect the role of parliaments.

39. Political issues are properly the domain of the Executive.

The courts should refrain from commenting on political issues unless and until

they arise for judicial determination.

40. These issues have been canvassed in the AlJA’s 1996 discussion paper on

judicial ethics, which notes:

“Common sense appears to suggest that judicial officers should not have

the same unlimited rights of freedom of expression as ordinary citizens. As

one commentator put it, ‘the interests of the judiciary are best served when

a judge is conspicuous only for his judicial activities.’ ”5

Accountability and the courts

41. Just because the judiciary is independent, this does not mean that the

judiciary does not have to be accountable to the community that it serves.

42. The notion of accountability permeates public life. People expect that all

aspects of government - including the courts - should be highly accountable,

House o f Lords Hansard, 5 June 1996, at 1298 cited in 70 ALJ 598. Wood, David, “Judicial Ethnics A discussion paper”, AIJA, Melbourne, 1996 at 30. The commentator cited is Simon H. Rifkind, “The Public Concern in a Judge’s Private Life” (1964) 19 University of Chicago Conference Series 25.

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43. The courts need to be accountable in three different ways.

They need to be judicially accountable.

They need to be accountable to the community that uses their services.

And they need to be accountable for efficient management of their finances and

administration.

44. Formal judicial accountability is manifested in a number of ways.

The business of the courts is generally conducted in public.

Judges resolve disputes under the obligation to publish full reasons for their

decisions.

Each decision, other than those of the ultimate court of appeal, is subject to

being appealed and appeal court criticisms of original decisions may be

published.

Academic lawyers are free to criticise judicial reasoning.

The media can, and do, attend and report on most court hearings.6

45. Some commentators have suggested that if, courts achieve this formal

judicial accountability, that is all that is required.

However, I do not think this is so.

46. While judicial accountability is very important, I do not think it is enough

to say that the fact that the courts are open and hearings are - for the most part -

held publicly is sufficient to ensure accountability to the community.

47. Courts also need to ensure that their services are as efficient and as

user-friendly as possible.

Courts need to develop case-management and other procedures to ensure

smooth and timely passage of a matter through the court.

6 Nicholson, R. D., “Judicial Independence & Accountability: Can They Co-Exist?”, 67 A U 404.

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48. If the courts do not develop mechanisms to ensure that they are accountable

to the community, that community is likely to find it difficult to understand -

and appreciate - the importance of judicial independence.

Judicial independence is probably not going to seem important to someone who

cannot get their dispute resolved promptly by a court.7

49. Because of the doctrine of judicial independence, parliaments are not able

to impose specific requirements on the courts to enforce accountability to the

community.

50. The courts, then, must assume the responsibility for developing appropriate

accountability and performance mechanisms.

51. The ADA has recently been given a grant, by my Department, for a

research project on courts and the public.

The central focus of this project is to explore the ways in which the courts can

enhance their relationship and communication with members of the general

public as actual and potential consumers of court services.

52. An important part of the project will be the collection of information about

the way in which the processes, facilities and administration of the courts in

Australia service the public - and of course on the ways in which these could be

improved.

53. The results of this research project will clearly be important in helping the

courts enhance their accountability to the community.

See Nicholson, at 424.

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54. As well as being accountable for the services that they provide to the

community, courts also need to be accountable for the cost-effective use of the

funds that they are given.

55. In Australia, the federal courts are funded by the federal Government but

the courts administer their own budgets and operations.

56. The Government does not control how each individual court uses the

budget allocated to it.

The courts, therefore, need to develop efficient management and administrative

practices that will ensure that the funding allocated to them is used to provide

the best possible court services.

57. If courts are to be accountable to the community, they need to be able to

demonstrate that they are judicially accountable, that they are providing

cost-efficient and user-friendly services and that they are efficiently managing

their financial and administrative systems.

58. As I said earlier, increasingly, courts need to focus on their role in society -

and that focus needs to include careful attention to the accountability of courts to

the societies they serve.

59. In conclusion, once again let me welcome you to Sydney and the

Conference.

And let me reiterate that the Conference is a very important one.

It focuses on a number of issues that are crucial for the development of courts -

both now and into the next millennium.

I am particularly pleased that the Conference is being held in Sydney, reflecting

the importance of Australia’s connection with the Asia-Pacific region.

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My Government recognises and values this connection - and in its support for

both the AHA and the Conference does so in a practical way.

60. I wish the Conference success in its deliberations.

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