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Opening address to the AIJA and National Judicial College of Australia Discovery Seminar



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THE HON NICOLA ROXON MP Attorney-General Minister for Emergency Management

SPEECH

23 March 2012

OPENING ADDRESS - AIJA AND NATIONAL JUDICIAL COLLEGE OF AUSTRALIA DISCOVERY SEMINAR

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Fairness: good laws, good application and good processes

Acknowledgements

First, may I acknowledge the traditional owners of the land we meet on - and pay my respects to their elders, both past and present.

Chair of the Council of the National Judicial College of Australia

The Hon Wayne Martin, Chief Justice of Western Australia

Conference organisers — the College and the Australasian Institute of Judicial Administration

Honour Justices and distinguished guests

Introduction

Thank you for the opportunity to address you this morning.

I believe, like many here, that one of the building blocks to a strong, functional democracy is a judicial and legal system that works equally well for those with few resources as for those with many.

When you look around the world at countries struggling to establish democracy, or control rampant street and organised crime - the lack of a strong legal system including a respected and independent police and judiciary is a starkly consistent feature.

So, as Attorney General, it seems a bit of a luxury today to be looking into much more intimate parts of the judicial processes - that of discovery - to ensure that our system is constantly reassessing its processes so that it is fair and effective.

I confess to telling my staff that I thought it quite unlikely that all of you - experts in running cases and your courts - would really care that much about my views on discovery.

And indeed I intend to leave the lion’s share of the technical work to those of you deeply involved in it - from the Law Reform Commission right through each of the courts and your different processes.

But I do need to make the point that I, and the Government, in fact care deeply about the success of this work. And we care deeply for a fundamental reason - for the courts to

maintain their standing and to administer law well, the system must be designed to be fair.

And fairness in the legal system has to be constantly considered. It requires good laws, good application and good processes to be able to deliver an outcome that is truly just.

Unapologetically, I want to see a justice system that delivers for all - whether you are a one-off litigant or major corporate player that is a regular user of the courts.

To do this, we need to make sure that finite resources are used as effectively and efficiently as possible - that the finite resources of the courts themselves are best used, but also that the often unequal resources of the litigants does not unduly affect the outcome.

Of course, in part, this goes to legal aid and other support government can provide to the most needy.

But much more often, given constantly increasing demand and ever tighter budgets, it is affected by the way courts themselves run their cases and manage their matters.

Good laws, good application and good processes all play their role - but all of them need good people, such as yourselves, to oversee and manage them.

Without all these elements in place, steps such as discovery - which go to the heart of fair dispute resolution - can often become a tool to pervert the process.

Pervert is a strong and emotive term I know - but I use it deliberately.

It comes when one party uses their disproportionate resources to lump smaller opposing parties with roomfuls of irrelevant documents - as has historically happened in some famous tobacco injury cases. Or to demand more documents than are necessary to fully and fairly aid decision-making in a particular dispute.

In situations such as this, the person on the bench is as important as the rules they follow - we all know judicial discretion, on-the-spot decision-making and wise oversight fundamentally shapes the course of many cases.

Similarly, we know how cost and fee rules, the ability - or not - to take representative action and the sheer imbalance of finances in particular areas of commerce can encourage or dissuade action. All of these add strength to the conviction that the litigation processes and rules matter very much, and to whether we have a legal system that works fairly.

The importance of court procedure is often overlooked - by outsiders - in the commercial area. But the importance of procedure is fundamentally understood by the community when you think about the laws of evidence in criminal trials. Perhaps we can blame American TV here!

A good example makes this point well. There is much legal work in the courts about tax — but you must search much further to find cases about franchise and lease arrangements. Is it because shop owners and franchisees never have disputes with multi-national corporate or big shopping centre owners? Have there been no problems despite this vastly growing commercial area?

Frankly, this seems unlikely. Is the sheer imbalance in economic strength the reason? Do costs, or the system, have an impact?

How can a party’s own costs, let alone the risk of a cost order against you, really not be a limiter?

Of course we don’t want to encourage litigation for litigation’s sake - but the whole community benefits when particular areas of law are tested, parameters set out and a better system for commerce, negotiation or behaviours are shaped around this growing knowledge. The laws themselves can never be drafted with such depth and granularity. And we don’t want the lack of such cases being taken to embed unfairness into the way particular laws might be observed.

As legislators - particularly in commercial and trade areas - precedents are vital to give context to competition law, contractual negotiations and much more. If you look at native title law - the long and slow first cases have since enabled many more to be negotiated within a clarified framework.

But I digress - I’m really just trying to make the point that processes matter for delivering outcomes.

There are always options worth considering that can improve fairness or enhance access to justice for the ‘Davids’ of society instead of leaving our legal system only for its ‘Goliaths’.

I would like to quote the Honourable James Spigelman AC, former Chief Justice of the Supreme Court of NSW and now Chair of the ABC .

Mr Spigelman noted that:

“when senior partners of a law firm tell me, as they have, that for any significant commercial dispute the flag-fall for discovery is often $2 million, the position is not sustainable.”

I couldn’t agree more. And this is why I said earlier that discovery can be used to pervert the justice process.

Mr Spigelman’s comments appeared in my Department’s Access to Justice Taskforce Report - a report that, above everything else, sought to provide Government with the way forward to make our system more sustainable.

The Report and resulting Framework concentrated on the importance of considering the civil justice system as a whole - encompassing courts, tribunals, alternative dispute resolution - and working to assist the courts in their role ensuring fair, simple, affordable and accessible justice.

Of particular note in the report are the high and sometimes disproportionate costs of discovery as a specific barrier to justice.

From the Report sprang the ALRC’s opus, Managing Discovery.

I thank and congratulate the Commission’s President, Professor Rosalind Croucher, the other Members of the Commission and its staff involved in delivering this work. I’ll let Professor Croucher herself speak to its findings later today.

But I would like to assure her, and you, that we are already acting to implement its recommendations - for example, in these Parliamentary sittings the House passed the Access to Justice Bill, which will (amongst other things):

• clarify the Federal Court’s powers to limit the costs of discovery;

• encourage proportionality when dealing with discovery;

• confirm the Federal Court’s power to make orders limiting the costs of discovery, and order pre-trial oral examination about discovery.

I also note that the Federal Court is already considered a leader in case management innovations, including managing discovery.

One outstanding innovation with which you would all be familiar is the Court’s fast track list, otherwise known as the rocket docket, which has provided new opportunities for fast and cost effective resolution of commercial disputes.

Other examples include a range of ‘e-innovations’, such as eLodgement, eCourtroom and eCase administration which take advantage of new technologies to deliver faster and cheaper services online.

More effective management, such as that in operation in the Federal Court, can help to reduce litigants’ costs, and ensure efficient and proportionate allocation of the Court’s resources. These conferences are wonderful opportunities to share and build on any such successes.

Beyond these sorts of specifics, as a new Attorney I am developing and starting to implement an ambitious agenda for our federal court system, based on the principles of:

• Openness and transparency

• Accessibility and a constant focus on resolution

• Efficient administration, in part by providing greater certainty as to roles and jurisdiction; and

• Preparing our court system for the future.

For example, some of you would be aware of the Skehill Review, recently completed by a former Secretary of the Commonwealth Attorney-General’s Department, which examines many of the agencies (including Courts and tribunals) within my portfolio.

I expect the Government response to this review to resolve, once and for all, the future and remit of the Federal Court, Family Court, and Federal Magistrates Court, giving them the certainty and clarity of purpose they need. The recommendations are extensive - going to issues like native title, drafting and more. You will hear more from me on this in coming months.

The Government is also reviewing the provision of Commonwealth legal aid services to ensure assistance is going where it is most needed and most effective.

Ultimately, however, these reforms are only ever as strong as the people who manage them every day. This means, to genuinely improve access, and foster lasting change in our justice system, I firmly believe the right people are just as important as the right process.

I have made it clear at every opportunity since I commenced in this role, that I am honoured to be the first law officer of a nation where the judiciary is internationally recognised for its excellence and independence.

The fact our former judicial officers are in such high demand in the region and around the world, to sit on superior courts, teach, or speak, is testament to the enduring quality of our judges and the strength of our system.

I am in the privileged position over the next 12 months of being asked to recommend the appointment of two High Court Justices.

Alongside this, we are replacing the retiring President of the Administrative Appeals Tribunal, appointing two Federal Court justices in Sydney, and Family Court Justices in

Adelaide, Sydney and Queensland, and Federal Magistrates to Melbourne and Brisbane.

Throughout considering and making these appointments, I will be clear that I put most weight on outstanding legal expertise and leadership.

But for many years now I have been on the record of also noting the importance of the judiciary better reflecting the diverse strengths and backgrounds of the Australian community. It is part of the overarching concern I have about a fair system - it must be fair and be perceived to be fair.

Looking at the bench, this sometimes requires a fairly big leap of faith - if you’re indigenous, a woman, or live outside Sydney or Melbourne.

Some visible changes have occurred in recent years. We have our first indigenous Federal Magistrate Mr Matthew Myers. We now have three women sitting on the bench of our highest court, but many still point out that too few women are sitting on the Federal Court. And we have been less than successful in appointing lawyers from academia, the ranks of solicitors or law reformers in any significant numbers.

Gender should be considered when we evaluate the diversity of our judiciary. But so should professional, geographic and cultural background. All are important factors for the community when they consider how representative the judiciary is of their interests, of how confident they are in it.

A timely illustration of the quandary we face is the retirement yesterday of Justice Margaret Stone from the Federal Court. When Justice Stone was appointed to the Court in 2000, her appointment was not only noteworthy because she is a woman, but also

because of her background as a solicitor.

Her Honour’s commitment to the judiciary was exemplified by her membership of the Governing Council and the Executive Committee of the Judicial Conference of Australia over many years and her contribution to legal education generally.

She proved the value of looking for talent beyond the bar, and, most importantly, Justice Stone was very supportive of young lawyers and women at the bar and in the judiciary.

On behalf of the Government, I would like to thank Justice Stone for her contribution to the work of the Federal Court; I extend sincere best wishes to Her Honour for the future.

I am relieved to say that while Justice Stone’s retirement does not leave the Federal Court without female judges, or without solicitors or academics, it does remind us that with one retirement we can be left with a dramatic hole. It also reminds us that the vast majority of appointments over the past decade have not reflected the diverse legal community the Court serves.

Orientation and continuing education also play a central role — ensuring sensitivity to a range of needs. Education also ensures judicial officers adopt good procedural and case management habits early, and keep them up-to-date throughout their careers.

The College provides high quality professional development programs to judicial officers throughout Australia.

The College’s programs help judges to develop their skills, but importantly, also expose judges to new ideas and approaches, ensure the widest exchange of experience and knowledge, and challenge judicial officers to think afresh about their work.

I acknowledge the significant work of both the College and the Australasian Institute of Judicial Administration in the area of judicial education, including today’s conference.

I also want to mention that, earlier this week I sent letters to my state counterparts, Federal and State Chief Justices, Presidents of Law Societies and Bar Associations, the Heads of National Legal Aid, and Deans of Law Schools, amongst many others - some of whom are here today - in which I sought to consult on possible High Court appointments.

Beyond this formal correspondence, I encourage you all here today to put forward your views on the attributes necessary, or specific nominees who would meet the highest standards needed - but I ask you to think outside the square as well.

I am, of course, treating this process with the absolute seriousness and reflection it deserves. We will be replacing leaders of the Bench through the turn of the 21st Century: Justices William Gummow and Dyson Heydon. They have served the Court and the people of Australia with great distinction for 17 and 9 years, respectively.

Of course speculation on who these might be has already begun, despite this being my first comment on the issue. One commentator has likened the process to trying to pick a Melbourne Cup winner without access to the race field [George Williams], while The Australian newspaper has confidently predicted the appointment will be “a white Anglo-Saxon male from Sydney”.

Of course, for all of you in the audience who fit that description, there’s nothing wrong with such a candidate!

But, I just won’t be drawing the judicial eligibility line at the border of Newtown or conducting a chromosome test.

I will look at the leading figures in the legal world - whether they are men or women, barristers, academics or solicitors and whether their postcode starts with a 2, 3, 6 or 8.

Conclusion

People and process are both vital elements of a strong, independent, responsive and effective judicial system.

The careful selection of the right people and right processes for our judicial system will be paramount to ensuring it delivers fairly for all Australians.

We need the right tools in place, and the right people to manage them, to have the best laws implemented in the fairest way - and discovery will be one part of this.

$2 million should not be the minimum flag fall. That makes it near impossible for individuals, other than the most wealthy, to have the benefit of resolving their disputes in court.

I started today by talking about my commitment to improving access to justice, and the need for an equitable and efficient justice system in Australia.

It’s a commitment that I’m sure we all share, and I trust that today’s conference will provide an opportunity for creative and collaborative thinking to bring us closer to that goal.

Thank you for having me - and I look forward to working together on many vital challenges.

ENDS

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