AIJA News

In this issue:

Note from the Executive Director

Welcome to the first AIJA newsletter for 2021.

In this edition we report on the outcomes of the AIJA’s AGM from November last year, for the first time held by virtual means because of COVID-19 travel restrictions, and provide a link to our Annual Report for 2019-20 which was sent to all members in December.

Our newly elected Council members are listed including some returning Council members and some new to Council, and we report on new members to the AIJA.

We also highlight a recently approved research project for which we’ll provide ongoing progress reports. We hope that this year will prove less challenging than last for our researchers to undertake their work. Despite delays caused by COVID-19 last year, we also anticipate being able to share the news of several completed research projects in the next few months.

A feature of this edition is highlights from the latest Journal of Judicial Administration published by Thomson Reuters in association with the AIJA. The Journal, which covers contemporary developments in judicial systems and court administration, is edited by the AIJA’s former Executive Director, Greg Reinhardt AM.

As previously advised, the AIJA Council and Board spent significant time in the last quarter of 2020 working on a revised AIJA strategy. That work is being finalised and we will report to members shortly.

In conclusion, I would like to say again that I welcome member feedback, on this newsletter and its content, or on any of the activities of the AIJA.

Annual Report

The AIJA’s Annual Report for 2020 is available on the AIJA Website. Click here to view it.

Results of AGM - 14 November 2020 at 4.30 pm AEDT

The AIJA’s 2020 AGM took place on 14 November 2020, via Microsoft Teams.

Election of President-Elect

Following the AGM, the Hon Justice Jenny Blokland, Supreme Court of the Northern Territory, has been elected President-Elect.

Appointment to the Board of Management

Following the retirement of the Rt Hon Dame Helen Winkelmann GNZM from Council, Dr Matt Collins AM QC has been appointed to the AIJA Board of Management.

Retirement from Council

The AIJA extends its thanks to the following members who retired from the AIJA Council during the past year:

  • The Rt Hon Dame Helen Winkelmann GNZM, Chief Justice of New Zealand, from the Judicial Members’ category;  
  • Dr Brenda McGivern, State Administrative Tribunal, Western Australia, from the Academic Members’ category; 
  • Her Honour Judge Barbara Baker, Federal Circuit Court of Australia, from the Judicial Members’ category; 
  • The Hon Robert Gotterson AO, Queensland Court of Appeal, from the Judicial Members’ category; and 
  • The Hon Justice Lindy Jenkins, Supreme Court of Western Australia, from the Judicial Members’ category. 

The AIJA extends its thanks to these members for their dedication to and support of the AIJA and its work during their appointments.

Appointments to Council

The following members were elected to Council at the AGM:

  • The Hon Justice Michael Elkaim, Supreme Court of the Australian Capital Territory, was re-elected in the Judicial Members’ category; 
  • The Hon Justice Susan Kenny AM, Federal Court of Australia, was re-elected in the Judicial Members’ category;
  • The Hon Justice Susan Thomas, Chief High Court Judge of New Zealand, was elected in the Judicial Members’ category, following the retirement of the Rt Hon Dame Helen Winkelmann GNZM, Chief Justice of New Zealand from Council; 
  • Kate Davenport QC, Barrister, New Zealand, was re-elected in the Professional Members’ category; 
  • Professor Andrew Lynch, University of New South Wales, was elected in the Academic Members’ category, following the retirement of Dr Brenda McGivern from Council; and 
  • The Hon Justice Duncan Kerr Chev LH was re-appointed to Council in the Appointed Members’ category. 

The following members were re-elected at the AGM, following their appointment last year as casual vacancies:

  • The Hon Justice Jenni Hill, Supreme Court of Western Australia, in the Judicial Members’ category, following the retirement of the Hon Justice Lindy Jenkins from Council; 
  • The Hon Justice Peter Applegarth AM, Supreme Court of Queensland, in the Judicial Members’ category, following the retirement of the Hon Robert Gotterson AO from Council; and 
  • His Honour Judge Grant Riethmuller, Federal Circuit Court of Australia, in the Judicial Members’ category, following the retirement of Her Honour Judge Barbara Baker from Council. 

 The AIJA extends its thanks to all those elected for their willingness to serve on the AIJA Council. 

New AIJA Rules

By Special Resolution, the AIJA Council has made amendments to the AIJA Rules, to bring them in line with recently inserted requirements under the Associations Incorporation Act 1991 (ACT), and to establish the Indigenous Justice Committee as a standing committee of the AIJA. 

Welcome to new AIJA members 

Council is pleased to welcome the 27 new members who have signed up to the AIJA so far this financial year. Council extends its thanks to all these new members, as well as our current members, for their support of the AIJA’s work.

Update on Ongoing AIJA Research

The AIJA is pleased to inform members that it has recently supported a new research project: 

Evaluating the Effectiveness of Dangerous Sexual Offender (DSO) Legislation  

This project reviews relevant DSO legislation in Australia to identify provisions which relate specifically to the management and treatment of DSOs and how those provisions assist in achieving the aims of community protection and rehabilitation. Ultimately, it seeks to better inform the management of DSOs in Australia.   

This research is being undertaken by a team from Griffith University, led by Danielle Arlanda Harris and assisted by Juliet Davis.  

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 29, Part 3 

Ian Freckelton QC. “Single Joint Expert Witnesses” (2020) 29(3) Journal of Judicial Administration 85.  

After the 1995 Lord Woolf report into access to justice, there was increased international recognition of the risk that expert opinion evidence was too often coming before courts in ways that did not assist accurate fact-finding and that it was unacceptably expensive and prone to abuse. A number of initiatives were trialled, including single joint expert (SJE) witnesses. This article scrutinises the SJE procedure, which of its nature removes from parties the entitlement to choose and call their own expert witnesses. It highlights controversies in relation to the procedure and examines variations from jurisdiction to jurisdiction in how it is formulated and implemented. It suggests that, given other developments in relation to expert evidence procedure and admissibility, the era of SJE witnesses may have passed save in particular cases where it is necessary for courts to intervene to prevent abuse arising from the calling of a proliferation of experts by parties or where there is an absence of diversity of approach in the area of expertise. 

Sarah Murray, Ian Murray and Tamara Tulich. “Court Delay and Judicial Wellbeing: Lessons from Self-Determination Theory to Enhance Court Timeliness in Australia” (2020) 29(3) Journal of Judicial Administration 101. 

Drawing on the experience in Australia of media criticism of judicial timeliness, this article uses the lessons of psychology and self-determination theory to suggest how judicial performance mechanisms should be designed to align intrinsic and extrinsic judicial motivation. Most crucially, measures of judicial performance need to be crafted with an acceptance of the fact that extrinsic motivation can lead to a reduction in the intrinsic motivation of judges. This means that court structures and processes should look to service judges’ psychological needs of competence, relatedness and autonomy. These can, for example, influence more collaborative ways of assigning cases, self-regulated performance goals, and mechanisms to promote judicial collegiality and mentoring. Approaches that solely concentrate on externally derived key performance indicators are likely to be deleterious to judicial productivity and wellbeing over the long term and will negatively impact on the timeliness of courts. 

Felicity Bell. “A Tale of Two Courts” (2020) 29(3) Journal of Judicial Administration 118. 

For 20 years, two Australian Courts have been tasked with hearing family law matters: the Family Court and the Federal Circuit Court. In a jurisdiction dealing largely with relationship breakdown, relations between these Courts, and between they and the Federal Government, have not always been easy. But amid the politics of family law reform these spats raise larger questions about both the nature of family law and the nature of being a judicial officer. Specifically, the need for and importance attached to family law specialisation; and the relationships between trial and appellate courts, are considered. 

Anita Mackay and Jacqueline Giuffrida. “Implications of the Royal Commission into Institutional Responses to Child Abuse for the Protection of Vulnerable Witnesses: Royal Commission Procedures and Introduction of Intermediaries and Ground Rules Hearings around Australia” (2020) 29(3) Journal of Judicial Administration 136. 

The Royal Commission into Institutional Responses to Child Abuse (CSARC) concluded in December 2017 after engaging with thousands of vulnerable witnesses over a four-year period. The first implication of the CSARC for the protection of vulnerable witnesses is innovative Royal Commission procedures that may be adopted by future Royal Commissions. The second implication is changes to criminal procedure in the States and Territories. The CSARC made a number of recommendations aimed at protecting vulnerable witnesses during criminal trials. This article focuses on two that relate to intermediaries and ground rules hearings, and the significant variation between jurisdictions in their approach to implementation of the recommendations. This article therefore recommends best practice for the use of intermediaries and ground rules hearings that could logically be incorporated into the Uniform Evidence scheme. 

Volume 29, Part 4 

Donald Speagle. “Independent Courts Governance in Victoria: Origins and Ideas from the United States” (2020) 29(4) Journal of Judicial Administration 157. 

Following the Commonwealth and South Australia, in 2014 Victoria became the third Australian jurisdiction to adopt a model of independent courts governance. Analysis of the intellectual history of that idea in Australia, and in Victoria in particular, demonstrates that the dominant influence was the model of self-governance of the federal courts in the United States. The objectives of self-governance in the United States federal court system were managerial – that is, to make court administration more effective and efficient – as much as, if not more than, constitutional – to enhance the independence of the judiciary. In addition, the reforms of court governance there were designed to ensure an integrated approach to the administration of the judicial branch as a whole. Despite the influence of the United States’ approach in the earlier movement for independent courts governance in Victoria, the current Victorian legislation does not reflect these ideas. 

Craig Westergard. “Haply a Minority’s Voice May Do Some Good: Diversity at the United States Supreme Court” (2020) 29(3) Journal of Judicial Administration 174. 

Diversity improves decision-making and substantive outcomes. This finding has been demonstrated by numerous studies and its logical appeal is intuitive, since additional voices serve to increase the availability of information. Despite the clear benefits of diversity, the legal profession remains one of the nation’s least diverse. Far from leading the way on this front, the United States Supreme Court is emblematic of the law’s problems, and it generally lags behind. This article analyses the Supreme Court’s decision-making before and after the appointments of Justice Louis Brandeis (the first Jewish member of the Court), Justice Thurgood Marshall (the first African American) and Justice Sandra Day O’Connor (the first female). It shows that the presence of a single, previously unrepresented group necessarily improves decision-making because it increases consideration of minority viewpoints. As such, the Supreme Court, Congress, government agencies, law firms, businesses and law schools in the United States and elsewhere should make increased efforts to promote diversity, and this article outlines several concrete steps the legal community might take to do so. 

Volume 30, Part 1 

Ilana Bolingford, Mirko Bagaric, Melissa Bull, Dan Hunter and Nigel Stobbs. “Is Australia Ready for AI on the Bench?” (2020) 30(1) Journal of Judicial Administration 3. 

The rapidly accelerating integration of artificial intelligence (AI) into our lives will soon affect courtrooms and other legal environments in Australia. However, critical threshold issues for a smooth integration of AI into court environments remain unexamined, including the psychological and attitudinal-readiness of the judiciary to work with algorithmic tools. This distinct gap in the literature means that we do not yet know: whether Australian judges understand AI; whether they trust it; whether they appreciate its potentials and risks or what might influence their attitudes; whether they are aware of the differences between automated and augmented decision-making; and what accountability and oversight mechanisms will be required. This article considers the likely barriers and risks to a successful integration of AI into the work of judges in Australia, based on research and experience in other jurisdictions – particularly the United States, where algorithms already play a significant role in facilitating judicial decision-making. 

Amanda Clarke. “The Rehabilitative Ideal and the Realism of Drug Court Success” (2020) 30(1) Journal of Judicial Administration 19. 

Drug courts were developed in the United States in the late-1980s as a response to the perceived ineffectiveness of traditional criminal justice responses to drug-related problems. Over the past 20 years drug courts have begun to emerge across the world. In Australia, the model was first adopted in New South Wales in 1999 and continues to gain popularity in most States. Drug court program evaluations routinely focus on recidivism rates as a key indicator of performance; however, this measure does not consider any other components that can result in a successful drug court outcome. This article presents the methodology and analysis of research that sought to determine what other elements of the drug court process are linked to the successful completion of a drug court program. A documentary analysis was conducted of the operation and outcomes of Australian drug courts and thematic analysis of naturalistic observation data from drug court proceedings. The research conclusively identified one overarching theme – “the rehabilitative ideal” – and how it is linked to drug court success. In this vein, the article discusses a number of recommendations on how drug courts can be informed by evidence of best practice to enhance outcomes. 

Dave McDonald, Jenae Carpenter and Natalia Hanley. “Allowing for Participants in Royal Commissions: A Scoping Review” (2020) 30(1) Journal of Judicial Administration 37. 

This article examines Royal Commissions on the basis of participant experiences. Comprising individuals or groups whose experiences and insights are central to the work of a Royal Commission, they may appear due to their status as victims of crime, and/or in a professional or witness capacity. As a growing number of Royal Commissions have sought to emphasise participant experiences of harm, it is important to understand how individuals engage with and experience them. Barriers impacting participants in traditional criminal justice processes have been well documented, and participation in Royal Commissions has been a matter of emerging interest academically. However, these domains have not yet overlapped. This article seeks to address this oversight by drawing out in more explicit detail what is and is not known about barriers to participation in Royal Commissions. Examination of participant experiences can provide useful lessons for future inquiries; it may foster greater confidence among affected communities and thereby augment an inquiry’s public legitimacy. 

2020 CourtFutures Top Trends to Watch 

Our colleagues at CourtFutures have recently released the results of their 2020 survey, indicating what court professionals around the world think the most likely future for courts may be. Their report shows a general acceptance of the increased role of technology in record-keeping and dispute resolution, standardisation of interactions with self-represented litigants, and an increase in specialised therapeutic and problem-solving courts.  The report can be accessed here. 

Membership Renewal

Membership renewals for 2020-21 are now overdue. Members who have not paid their membership will have received an email in October 2020 notifying them of their membership lapsing. If you have not already renewed your membership for this year, please do so via our website, or by contacting the Secretariat at aija@aija.org.au to request your log in details or an invoice. If you did not receive any email or letter reminder about your membership, or if you are otherwise unsure about your membership status, please contact the Secretariat to ensure your membership is still current. 

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: