Reforming the Court System: The Australian Experience Professor
David Weisbrot President, ALRC
Slide 2
World Bank Presentation 25/7/20012 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)
Slide 3
World Bank Presentation 25/7/20013 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 worlds largest 40
law firms, 11 of top 15 in the Asia-Pacific region Legal services
export market growing rapidly: 2 nd in gross earnings, 1 st in net
earnings
Slide 4
World Bank Presentation 25/7/20014 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
Slide 5
World Bank Presentation 25/7/20015 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
Slide 6
World Bank Presentation 25/7/20016 ALRC review - findings
1.There is no crisis in the federal civil justice system the
(universal) problems of access, cost, quality and delay are
reparable 2.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
Slide 7
World Bank Presentation 25/7/20017 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 Courts Modified Individual Docket System (IDS)
Slide 8
World Bank Presentation 25/7/20018 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
Slide 9
World Bank Presentation 25/7/20019 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
Slide 10
World Bank Presentation 25/7/200110 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)
Slide 11
World Bank Presentation 25/7/200111 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
Slide 12
World Bank Presentation 25/7/200112 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)
Slide 13
World Bank Presentation 25/7/200113 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.
Slide 14
Reforming the Court System: The Australian Experience Professor
David Weisbrot President, ALRC