It is understood that, in South Africa, there is discussion about transfer of the responsibility for Court administration from the Executive to the Judiciary.
It is not yet clear from my brief research what model of governance might be applied. See Annexure A: Comparative Review of Court Administration Innovation - Australia, Warwick Soden Ottawa, Canada, 25 March 2004 (without the annexures which are all available from the Annual Reports of the Institutions mentioned.
The Federal Court of Australia is a self-administering Court. The theme of this paper is how self-administering courts may enhance the delivery of accessible quality justice for all.
Transfer of administrative responsibility from the Executive to the Judiciary also transfers amongst other things, responsibility for court performance. The question that arises is: how should Court performance be measured?
There are likely to be many views about the appropriate answer to that question. The debate about how to measure court performance continues in Australia. The Council of Australian Governments (COAG) initiated a comparative report on government services, administered by the Australian Productivity Commission1.
That report attempts to examine the performance of courts in Australia by making comparisons in timeliness, throughput and cost. The cost calculation is a cost to Government, not a cost to customer. As to the accessibility issue, there is a comparative table of court fees charged. There is yet to be a measure of quality - and the debate of that issue is intense.
The Productivity Commission exercise is one way of measuring performance. It is attractive to governments, but not embraced by courts2.
Not everything can be measured. In the Parliaments annual Appropriation legislation to implement the Government's budget, there is a reference to the Portfolio Budget Statements. In those statements, there is also a reference to an 'outcome'.
'Through its jurisdiction, the Court will apply and uphold the rule of law to deliver remedies and enforce rights and in so doing, contribute to the social and economic development and well-being of all Australians.'
I imagine it would be possible, but not easy to measure 'social and economic development and well-being'.
The International Framework for Court Excellence is another way of measuring the performance of a Court and, at the same time, measuring the performance of their administration on an international comparative basis. It may be a useful tool for implementation in South Africa. It is a self assessment process.
1 See Report on Government Services 2011, Volume 1: Early childhood, education and training; Justice; Emergency management, http://www.pc.gov.au/gsp/reports/rogs/2011.
See Measuring Court Performance, Chief Justice Spigelman AC, 16 September 2006. http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_spigelman160906.
3 The details of the Framework and related documents can be found at http://www.courtexcellence.com/pdf/IFCE-Framework-v12.
4 This is certainly the case in Australia.
5 See Federal Court of Australia website: http://www.fedcourt.gov.au/students/studentsartprize.html#3 6 See Annexure B.
7 The Federal Magistrates Court came into existence on 23 December 1999.
8 See Annexure 'C'.
9 See strategy attached, Annexure 'D'.
The International Framework for Court Excellence3 was launched at a Conference undertaken by the Australian Institute of Judicial Administration (AIJA) in Sydney on 21 September 2008. The Framework was developed by an international consortium concluding the United States Federal Judicial Centre, the United States National Centre for State Courts, the World Bank, the Courts of Singapore and the AIJA. The Framework is, in essence, a quality performance measurement tool which includes values, concepts and mechanisms by which Courts can voluntarily assess and improve the quality of justice and the efficiency of court administration.
The Framework indicates that proactive management and inspiring leadership in an organisation are crucial for court success and excellence.
The Framework notes that defining, implementing and assessing court policies are key tools for effective management and strong leadership.
The Framework suggests that fair, effective and efficient court proceedings are indicators of court excellence.
The Framework mentions the importance of ensuring that Court spending is subject to an independent audit process and that performance information is readily available.
The Framework notes the importance of taking the needs and perception of court users into account.
The Framework notes that resources should be reasonably sufficient.
The Framework notes cost of access to justice considerations.
Let me focus first upon the area of court management and leadership. It seems to me that this will be a very important area for the courts of South Africa in the transition to and adoption of self-administration arrangements.
This area of the Framework includes a number of sub-components. First, active management and inspiring leadership in an organisation are crucial for court success and excellence. Moreover, the Framework highlights that this issue is important for all levels in the organisational structure.
Secondly, an excellent court organisation with outstanding performance results can only be realised by co-operation with other organisations and partners that influence the work of the court such as public prosecution agencies, governmental agencies, the local Bar, police and enforcement agencies.
Thirdly, strong leadership also requires the creation of a highly professional management capability within the organisation of courts as well as a focus on innovation within that organisation. Anticipating changes in society which can lead to changes in demands for court services and implementing reforms would be examples of an excellent management capability.
Interestingly, the Framework notes that in most countries the head of courts are judges with a high level of judicial expertise4. This does not automatically guarantee that they are also the best managers for courts or court organisations. The Framework asserts that excellent courts may also engage non-judge court administrators which are professionally trained in financial and organisational management and, through their high level managerial skills, are likely to focus on the need for courts to be innovative, and be flexible in the organisation of the court to be able to respond to societal change.
The Framework notes that, in the growing mobility of citizens, internationalization, changes in economic climate, variation in the level of crime rates in countries, and modification of laws, it is necessary for excellent court managers to recognise change early on and to actively involve staff and judges not in leadership positions to identify challenges and solutions. Court leaders try to modify work practices and organisation structures as well as to implement innovative solutions that lead to improve performance results and a high level of quality.
On our assessment, the Federal Court of Australia is an excellent court according to all the criteria, but particularly in relation to court management and leadership areas.
The Court Excellence Framework includes a self-assessment process to enable a court to assess its excellence. I have applied this process to our court and we are very pleased to conclude that we could legitimately claim to be a court of excellence in respect of all areas of the Framework.
Of particular importance in relation to the theme of this paper is how the Federal Court focussed upon the area of court management and leadership which it is believed, contributed to much of the success in all other areas of court excellence.
The following information is an example of how the joint responsibility of the Chief Justice and the person in my role in the court is able to be successful in the management and leadership role. Part IIA of the Federal Court of Australia Act is titled 'Management of the Court' and Division 1 of that part is titled 'Management responsibilities of Chief Justice and Registrar'. I attach a copy of Part IIA for ease of reference. See Annexure 'B'.
The Federal Court has undertaken four substantial strategic planning processes in the last decade and will conduct a further special planning process at the end of July 2011. There is little published information about the planning processes as they were, essentially, internal leadership issues within the Court.
Not long after becoming a self-administrating organisation in the mid-1990's, the Court undertook with the assistance of a consultant a critical issues analysis process involving a large number of the Judges of the Court and some senior staff. The process identified a number of very important strategic issues, critical to the success of the Court, including financial sustainability and, the need for a better system of managing cases. Following that workshop, the Court took the decision to implement the individual docket system. That system was revolutionary in Australia at that time and we believe the system continues to be the leading case management system in any court of Australia.
Other initiatives included new expert witnesses procedures which have been copied by most jurisdictions across Australia and mentioned in international journals for their innovative processes.
In the late 1990's, following the successful management of the critical issues in the implementation of innovative procedures, the court decided to undertake a further strategic planning and leadership exercise which focused upon a plan for the future.
'To be, and to be recognised within Australia and internationally, as a world leading superior Court.'
This strategic intent was not something advertised by the court. It was a mechanism by which internal focus and strategies could be implemented in order to achieve that strategic intent. Those strategies included amongst others, maintaining leadership as a Court, achieving a greater community understanding of the role of the court and, achieving our performance standards. Interesting initiatives arose. In order to achieve a greater community understanding of the role of the Court, it was decided that greater use of television would be a way in which better understanding could be achieved. The court decided in many of its high profile cases, to produce a summary of the judgment and when sufficient media interest produced requests for decisions to be televised, the judgment summary was read and televised, often live.
As an aside, at that time, we thought it important to promote a modern and efficient court and we appreciated that perceptions were often reality. The introduction of televised summary of judgments and greater use of television in court proceedings was permitted not long after the court decided to abolish wigs and implement a new Australian gown for judges. It was thought desirable at that time, to use television media as a way in which the court could be shown to be different, not only in appearance, but in its processes.
Another example of initiative directed towards achieving a greater community understanding of the role of the court was the National School Art Competition conducted by the Federal Court. The project was titled 'The Art of Delivering Justice'.5 It was promoted across all of the secondary schools of Australia and there were State and National prizes. Today much of the artwork continues to hang in the Courts in most of the capital cities in Australia. Images of some of the artwork adorned Annual Reports. Curriculum material that accompanied the Art of Delivering Justice material assisted many secondary students to understand issues about the separation of powers and the role of the court in the community. The understanding appeared in the artwork. Regrettably, the initiative was a once off and has not been repeated, with no possibility of it being done again in the very near future due to extremely tight financial circumstances. Nevertheless, I mention it as one example of how an innovative idea in relation to communicating with your community can be successful.
Enhancing leadership role in region and many others.
The strategic processes, planning exercises, leadership roles, and proactive management initiatives arise from the managerial and leadership duties associated with an excellent court and with a self-administering court.
One of the other areas of court excellence concerns public trust and confidence. Although many of the reform initiatives already mentioned are those which should flow from an appropriate leadership role, they are also beneficial towards achieving and maintaining public trust and confidence. The initiative I mentioned concerning televising of judgment summaries is an example of not only improving community understanding but contributing to public trust and confidence. By the public actually seeing what is done, particularly some members of the public who might never have been either in or near a court house, can only contribute to an improvement of public trust and confidence. Our approach to our Annual Report is another public trust and confidence issue.
The legislation establishing the self-administering arrangements of the Federal Court of Australia6 require the court to produce to Parliament an Annual Report. The court is also treated as a separate agency under the Federal Financial Management Act and related instruments. That Act and instruments require comprehensive financial information including fully audited financial statements. In addition to that financial accountability as an organisation, the court takes the opportunity to include extensive performance information in the Annual Report over and above what might ordinarily be expected by a court. We have always taken the opportunity to attempt to promote (in a public trust and confidence sense) what we have done and propose to do. We often do that in our Annual Report with appropriate images and text concerning initiatives.
Finally, in the context of court management and leadership , and with there being a new Chief Justice of the Federal Court in the last 12 months, it has been decided to again hold a special meeting of Judges and Senior Staff which, as mentioned, will occur late July 2011. The Agenda for that meeting will include how to achieve performance particularly in relation to the key work of the court undertaken by the Judges but, more importantly, in the context of leadership and innovation by the new Chief Justice it will be an opportunity for the Chief Justice to enhance his already established leadership by expressing his vision for the court. As to the final area of court excellence, affordable and accessible court services there is another example of an initiative of the Federal Court, worth mentioning.
The Federal Magistrates Court of Australia was established in the last decade.7 The Federal Court of Australia was one of the strongest proponents of the establishment of a Federal Magistrates Court. The logic behind the support for a new court was access to justice. The new court was intended to be successful in attracting the lower level federal work from the Federal Court and the Family Court of Australia. There was some controversy (as there still is) about establishing the Federal Magistrates Court and the Federal Court was one of the few proponents of its establishment. The controversy that exists at the moment is whether it should continue as a separate court or whether the judges of that court primarily concerned with family law become judges of the Family Court of Australia and the other judges (concerned with general federal law) remain either as a small court (administered by the Federal Court) or become part of the Federal Court of Australia. Importantly, however, whatever happens there will be a lower level federal judicial tier into which smaller, less expensive cases are commenced or transferred.
The idea of a low level, quick, inexpensive federal court was proposed and promoted by our court. It was an access to justice initiative. It has been particularly successful in the family law jurisdiction.
There have been other substantial access to justice initiatives promoted by the Federal Court of Australia including ADR. The Federal Court was the first court in Australia to implement accreditation of mediators in accordance with the new National Mediator Accreditation scheme. The court also uses ADR extensively, in appropriate cases.
The focus upon the International Court Excellence Framework and the example of how the Federal Court of Australia has applied that framework may be a useful example for consideration in South Africa. The area of user satisfaction and the requirement to take into account the needs and perceptions of court users, is another area where the Framework may assist. There is a draft user satisfaction survey document which we found very useful, with some minor modifications. The survey was applied by our court across Australia in order to get feedback concerning access and fairness8. The courts of South Africa might find that, with some minor modifications, the access and fairness survey template is a useful model to apply. I also indicate that it was not necessary to undertake a large project in relation to the user survey. It is relatively simple to use and should be able to be done within existing resources.
Another very important access to justice initiative involves using information technology to deliver court services.
It is also important that a comprehensive eServices strategy be developed. That strategy, with access to justice as a high priority, should make future directions clear and enable all in the courts, in Justice agencies and all those who are involved, such as members of the private legal profession, to know and understand the future eServices outcomes.
Our Court has developed an eServices Strategy. It was presented by me at a meeting of all the judges and is adopted by the judges.
The eCourt used by our court enables many people involved in Native Title cases to closely follow developments, even where those people might be thousands of kilometres from the actual court building.
The court 'sitting on country' is also another very important access to justice initiative.
My theme at the start was how self-administering courts may enhance the delivery of accessible quality justice for all. I have given some examples of our court's initiatives and suggest that the Court Excellence Framework is a very useful tool for your jurisdictions.
One final point. Achieving access to justice will be the joint responsibility of the relevant Government Department and the courts. Each, on their own, could not be successful and co-operation will be necessary.
Thank you for your patience.