AIJA News - August 2021

In this issue:

Executive Director's Message

Welcome to the latest edition of the AIJA newsletter.

As part of the work the AIJA Council has undertaken in developing the new AIJA strategy, there have been various discussions about the great value of AIJA membership and the dedication of its members to the purpose of the organisation. In this edition’s message from the AIJA President, the Hon Justice Rares, discusses the value that he has derived over many years, and continues to derive from his membership.

We also provide updates on AIJA research projects, including the joint project with the Council of Australian Tribunals (COAT). It has been very pleasing to see the great interest in the outcomes of the project and the willingness of tribunals to be involved.

Unfortunately, the ongoing COVID-19 restrictions have meant that events planned for September, such as the AIJA Court Librarians Conference and the Australian Bar Association Conference, have had to be postponed. Fortunately, however the NSW Law Society’s Government Solicitors Conference is being offered by live stream and so the AIJA session, ‘Reflections on the virtual courtroom experience during a pandemic’ will proceed. A similar session, hosted by the AIJA, was offered at last year’s conference and proved very popular. We look forward to this event.

I would also like to remind members about the AIJA’s Award for Excellence which is now open for nominations. The closing date is Friday 24 September 2021.

Finally, I say once again, that we welcome your feedback regarding the newsletter and the activities of the AIJA as we strive to ensure value for our members.

Alison MacDonald

President's Message: The Value of AIJA Membership

I have had the pleasure of being involved with the AIJA since the early 1980s, when I acted as the honorary assistant secretary.  The three founders, Justices Russell Fox, Richard McGarvie and Dennis Mahoney, had the vision that there should be a body with the objects of providing judicial education and research into court and tribunal administration in Australia.  During the nearly 4 decades of my membership, the AIJA has pursued those goals and assisted other numerous organisations establish and provide specialised services in various jurisdictions.

Membership

The AIJA provides a unique opportunity for its members to meet with people interested in the administration of justice, including judicial officers, academics, registrars, court administrators, and members of the profession.  As our members are drawn from all levels of every jurisdiction in Australia and New Zealand, as well as other jurisdictions, membership of the AIJA provides the opportunity to discuss the future of justice with the most diverse and representative collective of like-minded people in our two countries and internationally.

Conferences

We host a range of conferences and webinars for our members that allow judicial officers, lawyers, academics, and other interested parties the chance to gather and learn from experts in the field.  The most well-known of these are our recurring conferences, including the Appellate Judges’ Conference, the Indigenous Justice Conference, and the Court Librarians’ Conference.  These flagship events are supplemented by occasional stand-alone conferences, including a Youth Justice Conference.  Our most recent conference was held remotely due to the impacts of COVID-19.  It provided the opportunity to discuss the effects of remote hearings on justice, while also learning about optimal camera angles, psychology, procedure, and even the virtual appearance of a Federal Court judge’s cat during proceedings.

Research

In addition to conferences, the AIJA supports a wide range of research which allows us to support judicial administration and policy-makers in Australia, New Zealand and elsewhere.  This research covers topics as diverse as the impact of the incarceration of First Nations’ offenders, litigants in person, court public information officers, parole, and court-referred alternative dispute resolution.  Reports published by the AIJA are freely available to our members, and we encourage you to explore our rich variety of research works available online.  We are currently supporting projects such as: a pilot program in Victoria which trials the use of Aboriginal community justice reports in sentencing, research into the most effective use of interpreters in courts, and a study on the future of artificial intelligence and automated decision making in courts.

Our research program offers members an opportunity to be actively involved in choosing and shaping these cutting-edge studies.  We seek member guidance in areas of interest, most recently through a survey to determine the direction of our research into artificial intelligence and the courts.  Moreover, every research project we support is supervised by an advisory committee that assists the researchers develop their work and ensures it is relevant to day-to-day practice within the justice system.  Advisory committee members are drawn from the AIJA membership and are chosen for their expertise in the area concerned.

The research program extends to our production of bench books, including the National Domestic and Family Violence Bench Book and the Bench Book for Children Giving Evidence in Australian Courts.  Through these resources, the AIJA seeks to provide additional support for judicial officers and practitioners as they engage with some of the most vulnerable members of our community.

International Consortium for Court Excellence

For those interested in operational excellence and improvement, the AIJA is also a founding member of and provides the secretariat for the International Consortium for Court Excellence (ICCE).  The ICCE is a collective of courts and judicial institutes.  It has produced an organisational review tool, the International Framework for Court Excellence (IFCE).  This assists courts and tribunals to implement a structural framework to identify opportunities and develop improvement plans.  The ICCE has a diverse range of members across the globe, including the Land and Environment Court of New South Wales and the District Court of New Zealand.  Many other courts, including the Federal Court of Australia and the Supreme Court of Victoria, have used some of its methodology.  The members of the ICCE are joined by courts across Europe, Asia, Africa, the Americas, and the Middle East, allowing members to learn from a global network striving for excellence.

I would be grateful if you would encourage colleagues and friends to consider joining the AIJA. If they would like to join or discuss the benefits of membership further, please ask them to visit the AIJA website or contact the Secretariat at aija@aija.org.au or on (61) 02 8099 2611.

Steven Rares 

RESEARCH

Update on Ongoing AIJA Research

Joint Project: AIJA and Council of Australian Tribunals (COAT) – Best Practice Guide to Tribunal Complaint Handling

The AIJA has agreed to jointly support a research project with COAT, and has commissioned former AAT Deputy President Stephanie Forgie to produce a best practice guide for dealing with complaints about members of tribunals in Australia and New Zealand.

The AIJA and COAT envisage that this will be a practically focused guide, aimed at improving the capacity of tribunals to address complaints as effectively as possible. It will include complaints processes both internal and external to tribunals, extend to all tribunals in Australia and New Zealand, and include comparative international studies with other jurisdictions including the United Kingdom and Canada.

Tribunals in Australia and New Zealand have been invited to participate in the study by providing information on their complaint handling procedures and the response so far has been positive.

We look forward to sharing more news about this project as it develops.

Artificial Intelligence (AI) Decision-Making and the Courts

In our last newsletter, we asked our members to respond to a survey which would help shape AIJA-supported research into automated decision making in courts. The research team wishes to thank the AIJA members who took the time to complete the survey, and is especially grateful that respondents represented all jurisdictions (but one) and levels of the judiciary.

As a result, the research team will shape the research in the following ways. First, they will begin by outlining the terminology and definitional aspects of AI to help enable judges to contribute to this emerging discussion. Second, they will explore the current use of AI in courts to provide detailed context to the study. Third, the research will focus on the technologies identified by respondents as those they were most interested in. Finally, the analysis will be primarily concerned with the interaction of AI and the principles which were considered most important. These principles are those of open justice and transparency, judicial independence, procedural fairness, judicial accountability, economy and efficiency, judicial impartiality and access to justice.

National Domestic and Family Violence Bench Book

The AIJA was pleased to advise members earlier this month that the 2021 update to the National Domestic and Family Violence Bench Book had been released . The updated edition contains 104 new case summaries, 55 new article summaries, and 32 other new resources. Additionally, a new section on coercive control has been added to chapter 3, which provides valuable insights into an area which is rapidly increasing in prominence. Chapter 4 includes a new section on people affected by trauma, and Chapter 10 also includes several updates.

While the Bench Book is a valuable resource for judicial officers, it has also received praise from and been used by practitioners, community members, and academics. Please share the Bench Book, available here, with anyone you believe may benefit from its use and the AIJA would welcome any feedback on the Bench Book.

The AIJA is also pleased to announce that the Commonwealth Attorney-General's Department has provided additional funding to support consultation and promotion of the Bench Book, including in relation to new content on coercive control. More information on this process will be shared in coming months and we look forward to consulting with members about how we can best assist those involved in the project.

The Bench Book is funded and supported by the Commonwealth and States and Territories’ Attorney-General’s Departments. The production of the Bench Book is led by Professor Heather Douglas of Melbourne University Law School, who works with an extensive team of  researchers, judicial officers and others who contribute their expertise and advice to the development and ongoing improvement of this resource.

Research in the media

Professor Kate Warner AC (former Governor of Tasmania) appeared on a recent episode of the Law Report, where she discussed her research into perceptions of sentencing. In the episode released on 6 July 2021, Professor Warner outlined the findings of her research into community perceptions of the sentencing of sex offenders, research which built upon her previous AIJA-sponsored research into community perceptions more generally. The podcast is available here.

Professor Warner’s AIJA-supported research has also led to a journal article published in the most recent edition of the Journal of Judicial Administration, the details of which are available later in this newsletter.

AIJA AWARD FOR EXCELLENCE

Nominations have opened for the AIJA’s prestigious Award for Excellence in Judicial Administration. This award recognises those who have made especially meritorious contributions to the administration of justice in Australia, New Zealand, and the surrounding region. Previous winners include the Te Kōti Rangatahi and Pasifika Youth Court, the Young Employees Advisory Group (YEAG) Initiative, and the Hon. Justice Forrest Miller.

The application form is available here.  

Nominations close 5 p.m. Friday September 24 2021, and the winner will be announced at the AIJA’s AGM in October this year.

SURVEY

KordaMentha and Australian Bar Association Concurrent Evidence Practices Survey

The AIJA invites its members to complete an anonymous survey on Concurrent Evidence Practices, run jointly by KordaMentha and the Australian Bar Association.

While its modern history goes back more than 35 years, concurrent evidence has seemingly increased in frequency over the last decade. However, 'hot-tubbing’ often receives mixed reviews from those operating within the legal sector, perhaps because of the varied approaches and formats that are applied.

With that in mind, the Concurrent Evidence Practices Survey has been designed to collect the opinions of those who give, examine or assess expert evidence, whether in litigation, arbitration or other hearings, to obtain benchmark information regarding current practices for concurrent evidence in Australia.

If you have first-hand experience with concurrent evidence and would like to be part of the survey, we welcome your participation.

MEMBERSHIP

Renewals

Thank you to those members who have already renewed their membership for 2021-2022. This promises to be an exciting year for the AIJA, with the release of several research reports, multiple webinars, and the hopeful return of in-person conferences. With the launch of our new organisational strategy, we look forward to the support of our members as we continue to grow, and contribute to excellence in judicial administration across Australia and New Zealand.

If you have not yet renewed for 2021-2022 you can do so online via our website here. Alternatively if you wish to reactivate your membership or you are having issues with the website please do not hesitate contact us at aija@aija.org.au so we can assist you.

Gregory Reinhardt AM- Law Institute of Victoria Award

Congratulations to the AIJA’s former Executive Director, Gregory Reinhardt AM, on being honoured with the Law Institute of Victoria’s President’s Award for Outstanding Service. This award is for those who have given outstanding service to the legal profession, and is recognition of Greg’s long service to the AIJA and to the legal system as a whole.

Professor Andrew Lynch – Dean of UNSW Law & Justice

Congratulations to AIJA Council Member, Professor Andrew Lynch, on his appointment as Dean of UNSW Law & Justice. Andrew has been acting Dean since July 2020, and the news of his appointment coincides with the 50th anniversary of the faculty.

CONFERENCES

NSW Government Solicitors Conference

The AIJA is hosting the first session of the 2021 NSW Government Solicitors Conference on Tuesday 7 September, with a panel discussion on ‘Reflections on the virtual courtroom experience during a pandemic’. AIJA President, the Hon. Justice Steven Rares (Federal Court of Australia), will be joined by the Hon. Justice Brigitte Markovic (Federal Court of Australia), Her Honour Judge Dina Yehia (District Court of NSW), Chris D’Aeth (Executive Director & Principal Director, Supreme Court of NSW), and Paul Coady (Barrister, Public Defenders Chambers).

Registration and additional information is available here.

AIJA Court Librarians Conference – postponed

Due to the uncertainty created by the latest wave of COVID-19 and travel restrictions, the 2021 AIJA Court Librarians Conference has been postponed. The AIJA looks forward to rescheduling the event, the aim being the first quarter of 2022.

Australian Bar Association 2021 National Conference – postponed

RE-EMERGE 2021

The Australian Bar after COVID-19: Energised, Innovative, Enduring

With regret, the ABA has postponed RE-EMERGE until 2022. The ABA shall publish the new dates for the conference as soon as possible.

PUBLICATIONS

The Judge, the Judiciary and the Court

The Judge, the Judiciary and the Court is aimed at anyone interested in the Australian judiciary today. It examines the impact of the individual on the judicial role, while exploring the collegiate environment in which judges must operate. This professional community can provide support but may also present its own challenges within the context of a particular court's relational dynamic and culture. The judge and the judiciary form the 'court', an institution grounded in a set of constitutional values that will influence how judges and the judiciary perform their functions. This collection brings together analysis of  the judicial role that highlights these unique aspects, particularly in the Australian setting. Through the lenses of judicial leadership, diversity, collegiality, dissent, style, technology, the media and popular culture, it analyses how judges work individually and as a collective to protect and promote the institutional values of the court.

Journal of Judicial Administration 

The Journal of Judicial Administration (ISSN: 1036-7918) is published by Thomson Reuters in association with the AIJA. The articles featured in the Journal are written by leading judges, academics, practitioners and other legal specialists and experts. The Journal is edited by Greg Reinhardt AM, former Executive Director of the AIJA. 

The Journal features informed discourse on areas such as:

  • the efficient and effective operation of Courts, Tribunals and quasi-judicial forums;
  • the impact of new technology on judicial administration;
  • the structure, organisation, financing and management of the Courts and the Court system;
  • the appointment, tenure, independence and accountability of judicial officers; and
  • education programs to enhance the work performance of justice system personnel. 

The Journal is available by subscription through Thomson Reuters. For more information about ordering the Journal, please email LTA.service@thomsonreuters.com or call (within Australia) 1300 304 195. More information about the journal can be found on its website by clicking here. The Journal may also be accessed through an existing Westlaw subscription. 

Volume 30, Part 4 includes:

Kate Warner, Lorana Bartels, Julia Davis, Lynne Roberts, Caroline Spiranovic and Karen Gelb “Aggravating and Mitigating Factors in Sexual and Non-sexual Violent Cases” (2021) 30(4) JJA 155.

This article reports on the findings of a content analysis of judges’ sentencing remarks for 167 offenders from 159 trials. The results show the wide range of aggravating and mitigating factors considered by judges in sentencing sexual and non-sexual violent offences and identifies those factors that arise most frequently. The article sheds light on the sentencing practice of judges at first instance, which complements the understanding of sentencing practice derived from legislative and appellate guidance. In the interests of improving public understanding of sentencing practices, factors that would benefit from better explanation in sentencing remarks are highlighted. Factors that require clearer appellate guidance are also noted and some interesting jurisdictional differences in the treatment of some factors are discussed.

Alexander Xynas “Expanding ADR In Our Courts: Mediation and the Judiciary” (2021) 30(4) JJA 180.

Despite increasing levels of litigation, contemporary Australian courts have overarching obligations to facilitate a just, efficient, cost-effective and expedient resolution of the issues in dispute between parties. Accordingly, appropriate or alternative dispute resolution processes, including judicial mediation, have or should be extended to be part of courts’ case management approaches in order to meet these obligations. While there are concerns regarding constitutional validity and the maintenance of judicial integrity, judicial mediation has many advantages. It can be less costly than drawn-out litigation and also provides a forum for early settlement of cases, thus freeing up courts to deal with more difficult cases. In 2021, judicial mediation has once again become an important matter for consideration following the impact of the COVID-19 pandemic and thus should be recognised and supported as a legitimate part of Australian courts’ case management approaches.

The Australasian Institute of Judicial Administration (AIJA) is an approved Research Institute for the purposes of the Income Tax Assessment Act 1997 (Cth). In addition to supporting our work, a donation to the Research Fund will facilitate research by the AIJA relating to judicial and court administration. Donations of $2 or more are tax-deductible for Australian tax payers: ABN: 13 063 150 739. Your support will be gratefully received and acknowledged.

Donations can be made on the AIJA website at https://aija.org.au/support-aija-research/.

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In this issue: