Upload
tin-bunjevac
View
165
Download
1
Embed Size (px)
Citation preview
Beyond Independence Court Governance in Context
Prepared by Tin Bunjevac Sydney, 7 October 2011
A member of:
Introduction • Need to firstly idenCfy problems, aims and drivers for reform before choosing a “model” • What those problems mean for the future of the judicial system?
• Difficulty of reaching consensus • OrganisaConal “atrophy” due to absence of common analyCcal and policy making infrastructure
• There is a structural deficiency in the organisaConal design of the execuCve model of court administraCon • Makes it difficult to strategically plan acCviCes • Not opCmal for independence, efficiency and quality
• Without common infrastructure and radical changes in the way courts are managed, difficult to see how courts and judges will tackle exisCng (significant) challenges • Let alone contemplate systemaCc future improvements in the quality of jusCce
• Governance debate has shiUed from purely academic debate to aVempts to idenCfy urgently needed organisaConal soluCons to protect judges and courts from mulCple external threats
Problems of delay: NSW and VIC • 600-‐page study of Civil LiCgaCon in NSW vs Germany (AneVe Marfording 2010)
• “The most comprehensive and interesCng comparaCve study in a generaCon” (SMH 2010)
• Examined 240 comparable cases from filing to disposiCon • Similar causes of acCon, expert evidence, type of compensaCon, jurisdicCon
• DuraCon in months:
35.12 23.44
7.68
District Court of StuVgart
District Court of NSW
Supreme Court of NSW
Surveys
NSW -‐ 100 aspects of liCgaCon “in need of reform”
Germany -‐ 16 aspects in need of
reform
Problems of delay: NSW and VIC
• In 2010 Victoria had the longest waiCng lists for: • Magistrates’ Court maVers • Children’s Court maVers • County Court trials • Supreme Court appeals
(AVorney-‐General Robert Clark, 2010)
Causes of delay: External • Increasing liCgiousness (>30% since 2003) • Law more complex – specialisaCon of pracCConers • New technologies – longer cases (forensic evidence) • Average higher court crime 5 days in 1980s 14 days in 2000s
• MulC-‐cultural society • Great asset, but need interpreters, delay in presenCng evidence
• Higher clients’ service expectaCons • client friendly, cost effecCve, transparent, plain language, iPhone • Pressure from commercial parCes, government, media, police
• OrganisaConal quality requirements (CEPEJ, 2003) • Efficiency, systems integraCon, permanent training, uniform applicaCon of law, judicial precision, correct treatment of parCes
• Stop delay, “even if reasoning is not perfect!” (Eradus, 2000)
Judicial administration problems • Judicial individualism and administraCve passivity (McGarvie J) • Maybe an asset for judicial independence, but a weakness when it comes to responding to societal challenges (Langbroek, 2010)
• “Especially pronounced when backlogs + complexity increased” (Ng, 2007) • Too much loyalty to “smallest unit” in the organisaCon
• Poorly defined rules of internal administraCve organisaCon • Some aVempts to address problems through admin divisions h/w • Roles of chief judges, “judges-‐in-‐charge” etc not well-‐defined • Unclear authority of chief judges over other judges or admin staff
• Councils of judges parCcularly ineffecCve as a governing organ • 19th Century insCtuCon, consensus-‐driven, insular • Any council with more than 15 judges “inevitably gives rise to serious problems of administraCon.” (Hruska Commission, USA, 1973)
Structural de?iciencies of court governance • Far-‐reaching administraCve separaCon between judicial and administraCve operaCons • Judicial governance structures operate in isolaCon from court administraCon (CEO has liVle or no input in judicial governance)
• Judges are not adequately involved in operaConal planning (CJC) • No parallel analyCcal infrastructure available to undertake this task • No control over budget, administraCon, even if infrastructure available
• Courts don’t have sufficient discreCon over expenditures • No fixed budget, even the allocated funds move around (AIJA, 2004) • Funding requests need approval from external bureaucracy
• Different prioriCes, hierarchies, physical separaCon, policy background • EffecCvely, neither judges nor administrators have sufficient control to be responsible for outcomes (who is responsible to public?)
• misalignment between authority and responsibility (AIJA, 2004) • Bifurcated system of administraCon (Denham Report, 1996)
• Conclusion: Fundamental obstacles to strategic long term planning of acCviCes. (CJC, 2006, AIJA 2004, CEPEJ 2003)
Realisation of need for change • Courts’ challenges significant in comparison with other large organisaCons • Increasing pressures, delay, challenging environment, higher expectaCons, growing criCcism, backlogs -‐ all at the same Cme!
• RealisaCon that the society is becoming more complex, demanding and diverse
• RealisaCon that tradiConally passive judicial approaches to court administraCon need to be reassessed • Judges have to organise beVer, delegate tasks • To do that, they need the support of an organisaCon to be able to respond the future challenges
• RealisaCon that the legislator has exhausted almost all opCons • Record investments, more judges, more tribunals, procedural reforms, substanCve reforms, ADR
• RealisaCon that, despite all reforms, the problems are persistent and growing in intensity, complexity and scope.
Rethinking independence, ef?iciency & quality: 2 sets of questions to ask: • Q1. Are the exisCng judicial and management arrangements sCll appropriate to ensure effecCve and efficient administraCon?
• In view of the problems, answer is overwhelmingly negaCve: • structural divide, poorly defined structures, consensus-‐driven, strategic planning difficult, funding cycle unstable
• Interpersonal divide between judges and court staff • no workflow integraCon, no meaningful professional support for judges, delegaCon paVerns basic, based on individual professionalism of judges, rather than a “system”
• A1: More integrated and verCcal administraCve arrangements are needed to give court managers more internal possibiliCes • “ParCcularly in financial and personnel maVers” (CEPEJ, 2003)
• So the first answer is the system of integrated management
Integrated management in courts
• Integrated management is the key to more effecCve operaCons: the Australian federal courts
• The court is self-‐responsible for financial and personnel maVers • More verCcal and central command of administraCve operaCons
• Integrated courts successfully evolving from “organisa(ons of professionals” into “professional organisa(ons”
• Improved efficency, self responsibility, innovaCon, task delegaCon, insCtuConal self-‐confidence
• Greatly enhances strategic-‐planning capacity (Soden, 2010) • Places judges in “appropriate working relaConship with professional administrators” (CJ Black, 2007)
Rethinking independence, ef?iciency & quality: 2nd type of issues • Q2. How can courts contemplate future improvements in quality? • TradiConal judicial qualiCes remain essenCal, but not sufficient • Judges and courts need to organise beVer, require support
• A2: A dedicated independent agency for the courts can provide the funding, experCse, technical and professional support.
• Proposed agency based on non-‐departmental public bodies (NDPB): • DifferenCated governance structure, at arms length from minister, different internal control environment, public accountability
• RaConale for NDPBs: • “greater legiCmacy, transparency and experCse of decision-‐making” • “Coherence between funcCon, form and managerial authority” (OECD, 2002; 2007)
• Promotes independence, efficiency, specialisaCon, innovaCon, client focus, service delivery (OECD, 2007)
Northern European Model
• Sweden, the Netherlands, Norway, Ireland (UK?) • Belief that a Judicial Agency is best posiConed to protect independence, promote quality, self-‐responsibility and efficiency in courts (ie. similar to NDPBs): (CEPEJ, 2003) 1. An independent judicial agency with budgetary and
management support competences promotes self-‐responsibility, efficiency and administraCve capacity of the judiciary at system level
2. Promotes self-‐responsibility, efficiency and quality in individual courts, due to support offered by a central service organisaCon
3. Key is in the combinaCon of support “from a distance” and “integrated management” in the courts Ø Should not “run” court administraCon for courts (cf SA, Ireland, UK)
Agency’s tasks and powers • Allocates budget to courts, provides general and technical support, drives development and quality • Must acquaint itself with the condiCons in which the courts operate
• Maintains some common systems, such as IT, security, payroll, web, legal databases
• Responsible for training, educaCon, recruitment, competences • Key: it does not manage budgets or employ staff for the courts
• Assists with project/technical know-‐how, promotes best pracCces • Performs certain legal and policy tasks – evaluaCng proposed legislaCon, drawing proposals in consultaCon with courts, deals with external agencies
• Can play a major role in promoCng legal quality and providing legal/research support to the judiciary to improve the quality of legal outcomes and uniform applicaCon of the law (the Netherlands)
Features of the Northern European Judicial Agency • Historical origin: Sweden -‐ consCtuConal tradiCon of funcConal decentralisaCon and devoluCon of govt funcCons to independent administraCve agencies – small ministries, large independent agencies
• Protected by consCtuCon from any interference by ministers • Possibility to address parliament if overall budget insufficient?
• Broadly defined tasks and powers to allow flexibility in actual dealings with courts + others (general, technical, professional)
• Governance based on public accountability (OECD, CEPEJ) • Broad stakeholder representaCon on board • Fixed term appointments, on merit • ExcepConally high level of operaConal transparency and public accountability to compensate for loss of ministerial responsibility
• Strong emphasis on consultaCons in all dealings
General directives from government • Government and minister have a very limited role in operaConal issues (other than the budget and informaCon)
• Government can issue basic operaConal direcCves that accompany the government’s budget bill.
• Eg. Government’s operaConal direcCves for the Swedish Agency include: (SNCA, 2010) • SNCA shall create appropriate condiCons for the courts by: • Ensuring an appropriate allocaCon of resources • Providing administraCve support and services • AcCng as a driving and supporCng force in developmental and quality-‐enhancement measures
• Striving to promote access to courts • SupporCng greater co-‐operaCon between the courts • SupporCng cooperaCon between the courts and other bodies.
Governance: diverse composition of board • DifferenCated governance structure promotes transparency, experCse and legiCmacy of decision-‐making (OECD, 2002) • Good balance of professional and social perspecCves • SubstanCal/majority judicial parCcipaCon is envisaged
• Members may include Judges, Court CEOs, Lawyers, MPs, independent experts
• Norway 9 members, Netherlands 4, Ireland 17, Denmark 11, England 10-‐11, Sweden 8 members • Uhrig Report (2003): 6-‐9 members is about right for public bodies • Hruska Commission (1973): No more than 15 on a judicial board • CEPEJ (2003): overly extensive representaCon is suscepCble to “poliCcisaCon and syndicalism” – criCcal of Irish board.
• Growing percepCon that chief/judge-‐only board is too inward-‐oriented • New philosophy of court system as a “service” to community (McCutcheon et al, 2001)
Governance: ?ixed term appointments • Appointments made for 4-‐6 years (+ extension?) • Promotes experCse, based on merit • Achieves separaCon of “ownership” from “management” • In the long run leads to depoliCcisaCon and professionalisaCon of court administraCon
• Even judicial nominaCons are made according to the candidates’ perceived skills, experience and interest in court administraCon (Sweden, Netherlands, Denmark, Norway)
• Permanent and facConal membership, eg strictly based on posiCon in judicial hierarchy, may not provide the required skills, legiCmacy and authority (difficult to replace if unsuited)
• Appropriate appointments/nominaCons processes must be established to ensure transparency and confidence of all • Must be aVuned to the needs of the courts and judges
Basic ministerial responsibility • Minister only responsible for budget adequacy and informaCon, but agency may make representaCons to parliament directly
• Ministerial responsibility is replaced and/or combined with public accountability
• In some countries, minister can sCll recommend dismissal of the board by Royal Decree, in excepConal circumstances:
• Manifestly unlawful decisions prejuducial to operaCons of courts • Auditor-‐General advises of gross irregulariCes in financial operaCons
• Except in extreme cases, all operaConal responsibility rests with the agency/CEO, and the minister has no control over their operaCons
• The Government may provide general objecCves but not interfere • eg Irish Courts service is required to take into account govt policy
Alternative forms of accountability • To compensate for reduced ministerial responsibility, new forms of public accountability have been developed • VerCcal responsibility to minister has been replaced by horizontal mechanisms of accountability between the agency and the minister, and the agency and the public
• Diverse composiCon of the board supports public accountability • Annual reports, Strategic plans • Required to provide specified and detailed informaCon about significant aspects of the agencies’ and courts operaCons
• Assessments of performance against own goals and government general direcCves
• Detailed informaCon about financial operaCons and staCsCcs • Far-‐reaching rights of access to informaCon about all aspects of internal operaCons (decisions, materials, correspondence)
• Transparent rules of internal organisaCon, accessible to the public • Ombudsman can invesCgate complaints • Auditor-‐General performs annual audits
Conclusion • There are significant internal and external challenges impacCng on the courts’ operaCons and they are growing in scope, intensity and complexity. This trend is not likely to be reversed.
• The execuCve model of court governance makes it difficult for courts to strategically plan their operaCons, due to the idenCfied structural deficiencies that are inherent in organisaConal design.
• As a result, more integrated management arrangements are required to give the courts more internal possibiliCes, parCcularly in financial and personnel maVers (integrated management).
• An independent judicial agency can provide the necessary support to the courts and promote their self-‐responsibility, independence, quality and efficiency. An independent judicial agency should be managed by a professional board consisCng of fixed-‐term appointees, but with significant judicial parCcipaCon.
• To compensate for the reducCon in ministerial responsibility, alternaCve forms of public accountability should be offered.