Government response to Australian Law Reform Commission Report No 89 - May 2003
Managing Justice : A review of the federal civil justice system
Introduction
For more than 25 years, the Australian Law Reform Commission has provided leadership and expertise in law reform. It has established itself as the nation's premier law reform body, focussed on making recommendations aimed at improving the administration of the law, ensuring the law meets current needs, and providing improved access to justice. The Commission has played an important role in the evolution of Australian law and legal institutions. It is, of course, particularly concerned with federal laws and matters within federal jurisdiction.
The Government considers that the Commission's report, Managing Justice: A review of the federal civil justice system (Report no.89), is one of its most significant reports. The federal civil justice system is 'the full array of judicial, administrative review and community and court based alternative dispute resolution (ADR) schemes found in federal civil jurisdiction' (Managing Justice, para 1.12).
Today's federal civil justice system is the product of significant developments during the last 25 years. The 1970s saw the creation of the Federal and Family Courts and a new administrative law system, including the establishment of the Administrative Appeals Tribunal and the office of the Ombudsman and streamlined judicial review under the Administrative Decisions (Judicial Review) Act 1977. In the 1980s Freedom of Information and Privacy Acts were enacted. In 2000 the Federal Magistrates Service was established.
Commission recommendations
The Commission's report is directed at improving our federal civil justice system. The report is the result of a wide-ranging and comprehensive empirical inquiry, carried out over 4 years, into the operations of federal courts and tribunals, the provision of legal assistance, alternative dispute resolution schemes, and legal education and professional training. The Commission undertook qualitative and quantitative research and engaged in numerous consultations with the Australian community and bodies involved in the federal civil justice system such as federal courts and tribunals, the Law Council of Australia, legal aid commissions and community legal centres. It received around 400 written submissions. The final report followed publication of a discussion paper, 6 issues papers, 6 background papers and a series of research reports detailing the major empirical research effort undertaken by the Commission. Its research into the operation of the Federal Court, the Family Court and the Administrative Appeals Tribunal is the most thorough ever undertaken.
Overall, the Commission found that the federal system is in good shape. It has, however, made many recommendations for improvements. 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.
In preparing its response, the Government has consulted all the bodies and groups at which recommendations were directed and has taken into account all comments received. Key themes of the Commission's report and the Government's response are addressed below.
The Government's objectives for the federal civil justice system
The Government's objectives for the federal civil justice system are quite clear: to create the most effective and efficient system that we can for resolving disputes, within the financial constraints that apply, and will always apply, to the delivery of justice. The Government is also committed to providing litigants with a range of options to prevent escalation of disputes and to provide a variety of methods of resolving them. Achievement of these objectives requires the close cooperation of all those involved in managing and working within the federal system and in providing education and training for participants in the system.
The establishment of the Federal Magistrates Service clearly demonstrates the Government's objectives. The Service handles many areas of family law jurisdiction and a range of other matters including administrative law disputes, human rights and bankruptcy proceedings, and some consumer protection matters under the Trade Practices Act 1974. It provides litigants with the option of a cheaper and less formal venue for resolving disputes. This initiative is freeing superior court judges to deal with more complex matters, thus allowing more efficient use of Commonwealth resources.
Improving access to the civil justice system
Many of the Commission's recommendations are directed at ways to improve access to the civil justice system for litigants and potential litigants, in particular through early access to clear information and support.
The Commission's report contains considerable discussion of the part that legal aid and other forms of assistance play in the federal civil justice system and emphasises the importance of assistance in family law matters. The development of improved purchaser-provider agreements for legal aid service delivery will enable the Government to monitor more effectively the achievement of its legal aid priorities.
Family law matters, especially those that relate to children, are a key priority for Government. As part of the Government's Stronger Families and Communities Strategy, the Attorney-General and the Minister for Family and Community Services established the Family Law Pathways Advisory Group to advise government on making the family law system more accessible and responsive.
The Report of the Pathways Advisory Group, released in August 2001, expressed a vision of an integrated family law system, where families can access the help they need with ease and where all service providers are linked, offering seamless support and referral. The Report suggested three clear pathways for use by families: a self-help pathway for families able to manage their own arrangements by agreement, a supported pathway for families able to reach agreement with assistance and support, and a litigation pathway for families where violence is an issue or where all other means of resolving disputes have failed. Each pathway might offer the whole solution for a particular family, while another family might switch between the different pathways as their needs change. The Government's response to the Report was released in May 2003.
The Commission supported the use of on-line information services and recommended further work on this by the Attorney-General's Department. In June 2001 the Attorney-General launched Australian Law Online. This website provides access to government legal information and direct links to Family Law Online, a national family law and referral website, and information about the Family Law Hotline and Regional Law Hotline which provide information to the community about family law and other legal matters.
The Australian Law Online initiative shows the Government's commitment to use new technology to help people access information and services.
As well as the Regional Law Hotline, the Government has also launched a number of rural and regional services. For example, the Western Queensland Justice Network uses video-conferencing technology to provide legal advice and assistance to rural and remote indigenous and non-indigenous communities.
During 2000, the Human Rights and Equal Opportunity Commission published a report in response to the Government's request for advice on access to electronic commerce and new technology services by older Australians and people with disabilities. The report found that a wide range of physical, financial and psychological issues can inhibit some Australians from using information technology, such as Internet sites and electronic banking. The findings of that report will be taken into account in improving access to information about legal rights including, in particular, in the Government's current work on development of a strategic framework to assist Commonwealth organisations to make and deliver policies, programs and services which are accessible for people with disabilities.
Pro bono work
The Commission's report encouraged greater pro bono work by the legal profession. The Government has a strong interest in increasing pro bono activity and has pursued initiatives such as the first national pro bono conference in August 2000 to promote and develop pro bono work by the legal profession. This event was very well received and has provided an excellent platform for the Government and legal community to work together to further pro bono activity.
One of the many positive outcomes of the conference was the establishment of the National Pro Bono Taskforce to build on the outcomes of the conference in relation to the promotion of pro bono schemes, best practice and quality assurance guidelines. The Taskforce presented its report in June 2001. A key recommendation of the report was to establish a pro bono resource centre. The Government supported this recommendation and has committed $1 million over four years to support the establishment of the centre, and other recommendations from the Taskforce report. The centre was incorporated in October 2002 and will be responsible for organising the 2nd National Pro Bono Conference to be held in late 2003.
Education and training
A very important group of Commission recommendations are directed at education and training of judges, tribunal members, legal practitioners and law students. The Government strongly supports the thrust of these although many are directed to federal courts and tribunals and educational and legal professional bodies, including the Law Council of Australia, and can only be implemented by them.
One Commission recommendation of particular interest to Governments, Commonwealth, State and Territory, was the establishment of an Australian Judicial College, which would have responsibility for the professional development of judges and judicial officers on a national basis. This also received widespread support among the judiciary. Following agreement of the Standing Committee of Attorneys-General, the college was established in mid 2002. The Commonwealth is to contribute 50% of the funding for the administration of the College. In addition to this funding, and that provided by participating States and Territories, fees will be charged for programs and courses.
Another important recommendation made by the Commission was the establishment of a Council on Tribunals, which would provide a valuable national forum for tribunal leadership to develop policies, undertake research and promote education on matters of common interest to tribunals throughout Australia. The Government supported the establishment of such a Council and asked the Administrative Review Council to facilitate the process to bring together tribunals interested in forming a Council. The inaugural meeting of the Council was held on 6 June 2002. The concept of a Council of Australian Tribunals was expanded at that meeting to the Council of Australasian Tribunals. The Council is made up of Commonwealth, State, Territory and New Zealand tribunals.
Case management in federal courts and tribunals
The Government supports the introduction of innovative, best practice pre-hearing and hearing procedures in courts and tribunals, so that Australians can have confidence that the civil justice system is fair and efficient.
The Commission made many recommendations on case management in federal courts and tribunals but also noted a significant number of innovative things being done in the federal courts and proposed for the Administrative Review Tribunal. For example, the Federal Court's expert witness guidelines were regarded as best practice by the Commission and the Family Court's Future Directions Committee has already implemented a number of the Commission recommendations.
One of the major thrusts of the Government's reform agenda in family law is to encourage people to resolve disputes through primary dispute resolution, rather than through litigation. In the last few years, the use of conciliation, counselling and mediation is increasingly and strongly encouraged in appropriate cases and is a feature of the Federal Magistrates Service. The Service is already making inroads into Family Court waiting lists in the jurisdictions in which it operates. Its work will enable the resources of the Family and Federal Courts to focus on more complicated, difficult and time consuming cases.
The Commonwealth as a litigant
The Commission also dealt with the position of the Commonwealth as a litigant in proceedings before courts and tribunals. The Commonwealth as a litigant has the dual responsibility of ensuring that it handles its cases efficiently and effectively as part of its responsibilities to taxpayers and the community and of ensuring that it acts appropriately and respects its responsibilities to the justice system, in short, that it behaves as a model litigant. The model litigant obligation, which applies when the Commonwealth is involved in disputes and litigation, is now expressed as a series of general principles in Legal Services Directions that the Attorney-General has issued under the Judiciary Act.
The Directions reflect the long-standing expectation of the courts and the community that all government litigants act fairly, with complete propriety and in accordance with the highest professional standards. The Attorney-General's Department will be conducting a review of the Legal Services Directions during 2003, which may include a commentary and examples to assist in understanding these requirements.
Working together
The Government is committed to a co-operative approach to strengthening the federal civil justice system. The Commission's report rightly places responsibility for the system on many bodies and individuals, in addition to government. They include courts, tribunals and the legal profession. The Government particularly welcomes the emphasis placed by the Commission on the responsibilities of professional bodies and law schools to ensure that future lawyers have high-level professional skills and an appreciation of ethical obligations.
What is needed from among all those responsible for the fairness, effectiveness and accessibility of the federal civil justice system is a range of responses that are tailored to address the range and complexity of legal problems faced by the community. Not every solution can be provided by the Government. The Government fulfils an important strategic role in our community. As well as being responsible for the institutional framework, the Government acts as a facilitator, assisting and drawing together the contributions of different sectors of the community to harness the value of coordinated community involvement. The Government also has an important role as a model litigant in the justice system.
Consultative networks and advisory bodies such as the Family Law Pathways Advisory Group and the Administrative Review Council provide valuable assistance. The Australian Law Reform Commission, through its report, has also tapped into considerable fruitful sources of advice and expertise in the community. The Government will continue to call upon these resources in equipping the federal civil justice system to meet the challenges of the future. New ma tters of concern in the federal civil justice system which were referred to the Commission include a complete review of the Judiciary Act (completed in September 2001) and the complex issue of civil and administrative penalties (completed in December 2002). The delivery of justice in Australia has always taken many forms.
Pro bono, legal aid, community legal services and other forms of legal service delivery all contribute to the justice system - as do other efforts to make the system fairer and more accessible and affordable.
The Government is concerned to encourage that all parts of the legal system perform at their best in the interests of both the entire community and those people in need of legal services.
The Government's full reponse to the recommendations of the Australian Law Reform Commission Report, Managing Justice: A Review of the federal civil justice system, can be download from this page.
