Reforming the Court System: The Australian Experience

1. Reforming the Court System:The Australian Experience Professor David Weisbrot President, ALRC

2. The Australian legal system • A federal system of government • State and territory courts still handle the bulk of litigation, including some federal matters • Federal civil justice system growing, but a relatively recent development • High Court of Australia (1901) • Family Court of Australia (1975) • Federal Court of Australia (1976) • admin merits review tribunals (1975) • Federal Magistrates Service (1999) World Bank Presentation 25/7/2001

3. The Australian legal system • 30,000 lawyers (90% solicitors, 10% barristers), 10,000 firms, traditionally organised on a State-by-State basis • Law firms now increasingly operate across state boundaries – and internationally • Corporate ‘mega-firms’ increasingly dominant: 6 of world’s largest 40 law firms, 11 of top 15 in the Asia-Pacific region • Legal services export market growing rapidly: 2nd in gross earnings, 1st in net earnings World Bank Presentation 25/7/2001

4. ALRC review of the federal civil justice system • Managing Justice report (ALRC 89, 2000) covers: • case management, practice and procedure in federal courts and tribunals • alternative dispute resolution (ADR) • legal education and training • continuing judicial education • judicial accountability • legal professional practice standards (ethics) • costs of litigation • legal aid/assistance • expert evidence World Bank Presentation 25/7/2001

5. ALRC review of the federal civil justice system • Use of expert advisory committees • Empirical study of over 4000 case files, and follow-up surveys of lawyers and parties • Consultation with hundreds of lawyers, judges and tribunal members, court and tribunal staff, litigants and interest groups • 400+ written submissions (institutional & personal) • 138+ recommendations for reform World Bank Presentation 25/7/2001

6. ALRC review - findings • There is no ‘crisis’ in the federal civil justice system – the (universal) problems of access, cost, quality and delay are reparable • There are no ‘quick fixes’, panaceas or permanent solutions • not codification or ‘Plain English’ alone • not legal aid alone • not tribunalisation alone • not ADR alone • not radical transplants World Bank Presentation 25/7/2001

7. ALRC review - findings 3. Effective case management requires: • early identification of issues, • continuous oversight • by judge/officer with ‘clout’, and • processes customised to the needs/circumstances of individual cases eg Federal Court’s ‘Modified Individual Docket System’ (IDS) World Bank Presentation 25/7/2001

8. ALRC review - findings 4. Justice systems require continuous monitoring (at macro level), good information management systems and capacity to adapt/change 5. Effective reform requires a holistic, collaborative approach – many players, institutions involved 6. Good structures and processes are important, but a ‘healthy legal culture’ is absolutely essential World Bank Presentation 25/7/2001

9. Systemic reform in aid of economic growth • Huge investment in federal courts and tribunals ($170M pa) and in legal services ($4.4B pa) -- even small efficiency gains free up capital, time, and creative energy for more productive use • Need for a more competitive market for legal services – particularly for individuals and small businesses • Increasingly competitive market for ‘dispute resolution services’: federal and state courts; regional/overseas courts; commercial arbitrators and ADR providers World Bank Presentation 25/7/2001

10. Systemic reform in aid of economic growth • Federal Court caseload (1998/99): • bankruptcy (mostly routine) • migration (22%), • native title (21%), • corporations (17%) (under threat) • trade practices (9%) • intellectual property (6%), • industrial law (5%), • administrative review (5%), • taxation (5%) • (human rights coming) World Bank Presentation 25/7/2001

11. Systemic reform in aid of economic growth • Federal courts play a key role in regulating capital markets (corporations law, competition, taxation) and labour markets (industrial relations) • Deregulation and privatisation trends mean less direct government/bureaucratic control; and increased focus on courts to define rights, enforce contracts, set precedents and parameters, and regulate markets World Bank Presentation 25/7/2001

12. Systemic reform in aid of economic growth • Demonstrated link between effective judicial case management of IP cases, and level of direct investment and technology transfer • Equip courts to cope with evidence on cutting edge R&D (of ‘Nobel Laureate complexity’) in the sciences, medicine, IT, economics, etc: • high quality, ‘engaged’ judges • specialist panels • continuing judicial education • expert assessors, witnesses (‘hot tub’ approach) World Bank Presentation 25/7/2001

13. Reform of the civil justice system and economic growth - Conclusion The independence, integrity and quality of the federal civil justice system are matters of comparative advantage, which government, commerce and industry should promote strongly in positioning Australia to attract foreign investment, the (re-)location of regional corporate HQs, and the recognition of Sydney as a ‘global finance centre’. World Bank Presentation 25/7/2001

14. Reforming the Court System:The Australian Experience Professor David Weisbrot President, ALRC