AIJA News - June 2021

In this issue:

President's Message

Despite the restrictions on normal life we have all experienced as a result of COVID-19, the past twelve months have been a period of great transformation for the AIJA.  We have relocated to Sydney, appointed a new Executive Director, Alison MacDonald, and had to find new ways to keep the AIJA functioning as an organisation, including meetings of our Council and Board of Management. 

The Board and I were delighted that the AIJA Council recently successfully achieved its aim of reviewing and reinvigorating our organisational strategy to ensure that the AIJA will remain a leading centre for excellence in judicial and tribunal administration. Accordingly, I am very pleased to provide you with access using this link to the high level AIJA 2021 – 23 strategic plan here. 

Underneath the high-level plan, we are now developing new initiatives and revised processes, particularly in terms of the AIJA’s pillars of research and education. I look forward to sharing further developments with you in the next edition of this newsletter. The Board, Alison and I would welcome any suggestions and feedback that you have. One future activity will be a survey of our membership to gain your insights for the Institute’s ongoing success. 

I have been a member of and associated with the AIJA for over thirty years and have always appreciated its strengths as a professional community. Sadly, with the recent death of the Hon Peter Heerey AM QC we suffered the loss of a key person in the AIJA’s formative years. I had the good fortune to work with Peter in the 1980s when he was honorary secretary, and I honorary assistant secretary, and we enjoyed a rewarding and long friendship as a result. On behalf of the AIJA, I have offered our sincere condolences to his wife, Sally, and his family. 

There has also been some very happy news in the AIJA community with the announcement on 20 May 2021 that former AIJA Council member and recently retired Federal Circuit Court Judge, Barbara Baker, will become the 29th Governor of Tasmania. This is a well-deserved recognition of Barbara’s lengthy service to the nation and her State, including her extensive contributions to the administration of justice, particularly in family law. I have offered congratulations to her on behalf of the AIJA. 

On the administrative front, you will have recently received your AIJA membership renewal notice by email. If you haven’t received the email or have any difficulty with the online subscription process, please email the secretariat at aija@aija.org.au or phone 02 8099 2611 so that you can be assisted. The AIJA greatly values your continuing support for its work and I encourage you to continue to contribute.  

Steven Rares 

Executive Director's Message

Like the President I am very pleased that we are in a position to share the new AIJA strategic plan. I enjoyed working with the Council and the Board in its development and I am looking forward to the further work to be able to deliver on the plan. 

This newsletter marks my one-year anniversary with the AIJA, and it has been a busy twelve months. In addition to this new strategy and the work that is flowing from it, we are undertaking a series of organisational reforms to improve the administration of the AIJA and our interaction with members.  

Regarding our research program, you may have noticed we recently requested your assistance in completing a survey which supports an AIJA research project that will produce a guide on the use of AI and automated decision-making in courts. Thank you to those that have taken the time to complete the survey; your insights will be of value to the research team. The survey is closing shortly, so if you have 10 minutes to spare, we would be most grateful for your response.  The survey, which is anonymous, is available here.  

 This edition of the newsletter also includes updates on the AIJA’s plans for upcoming conferences, an update on our research, and a summary of recent publications in our affiliated Journal of Judicial Administration.  

 We look forward to sharing more developments with you in the coming months. 

 Alison MacDonald 

Conferences

Australian Bar Association 2021 National Conference

RE-EMERGE 2021 
The Australian Bar after COVID-19: Energised, Innovative, Enduring 
Melbourne 16 – 18 September 2021 

RE-EMERGE 2021 will be the first national gathering of the Australian Bar for more than 18 months.  RE-EMERGE 2021 is an opportunity to re-engage with colleagues, reflect on having endured a momentous year, and participate in important discussions about what the Bar must do to re-emerge energised, innovative and stronger than before. 

In a full program over three days, RE-EMERGE 2021 will bring together leaders from the judiciary, the Bar, the profession, politics and the media, from across Australia and internationally, to discuss topics including: 

  • the impact of the pandemic on the Australian federation, the Bar and the profession; 
  • adjusting to disruption and change within the legal and justice sectors; 
  • managing the ongoing effects of last year on the courts, the legal profession and our clients; 
  • ethical issues that the judiciary and the profession cannot ignore; and 
  • current issues of law and practice in commercial, criminal, common and taxation law.    

Confirmed speakers to date include the Hon. Susan Kiefel AC, Chief Justice of the High Court of Australia, Professor Richard Susskind OBE, the Hon. James Allsop AO, Chief Justice of the Federal Court of Australia, the Hon. William Alstergren, Chief Justice of the Family and Federal Circuit Courts of Australia, the Hon. Anne Ferguson, Chief Justice of the Supreme Court of Victoria and the Hon. Andrew Bell, President of the NSW Court of Appeal. 

 In proud collaboration with the ABA, the AIJA will be presenting a panel discussion on Saturday, 18 September, “Views from the Bench of Remote Advocates and their Advocacy”. 

 This will be the unmissable legal conference of the year. 

 Please save the date: Melbourne, at a venue to be announced, and fully remotely for those unable to attend in person. 

Thursday 16 September 2021 
Welcome and keynote speakers from 3:30 pm with welcome drinks from 6:30 pm. 

Friday 17 September 2021 
Full day program from 9:00 am with the Gala Dinner from 7:30 pm. 

Saturday 18 September 2021 
Morning program from 9:00 am culminating in a “War Room” panel discussion, concluding at 1:30 pm. 

Registrations open shortly. For more information, or to register your interest in attending, please visit https://austbar.asn.au/reemerge2021.  

AIJA Court Librarians Conference, 21 September 2021

The AIJA is holding the 2021 Court Librarians Conference in Canberra on Tuesday 21 September.  

The last conference was held in 2017 and so this will be a very welcome opportunity for court librarians to gather and discuss issues of mutual interest.  

The event will be hosted at the High Court of Australia, and include morning tea, lunch, and afternoon tea. Registrations will open in late July, and registration fees will be: 

AIJA Member $150 (GST inc.) 
Non-Member  $175 (GST inc.) 

The program for the event is nearly finalised and we welcome suggestions for topics, outside speakers, and any papers you may wish to share.  

2023 AAL-AIJA-ALJ Joint Conference

The AIJA, the Australian Academy of Law (AAL), and the Australian Law Journal (ALJ) have agreed to jointly run a conference in August 2023 to celebrate several legal bicentenaries. These bicentenaries include the promulgation of the Third Charter of Justice in 1823 which established the Supreme Court of New South Wales and the first sitting of the Supreme Court of Van Diemen’s Land on 10 May 1824.  

The proposed purpose of the conference is to discuss what can we learn from the past and what we should do in the future.  

As part of our preparations for the conference, the AIJA is seeking feedback from our members about potential topics, and suggestions for other topics. Potential topics include: 

  • History – how we got here 
  • International perspectives on common law courts (Aus, NZ, Canada, US, UK) 
  • Indigenous people and the courts 
  • Courts as the third arm of government 
  • Use of technology inc. AI 
  • Threats to the impartial administration of justice 
  • Administration of courts 
  • Appointment and tenure of judges 
  • What civil law courts can teach us 
  • Criminal justice 
  • Media and the courts 
  • Tribunals taking over the work of courts 
  • Judicial training and continuing education 

 Members are encouraged to provide suggestions or feedback to the AIJA by emailing aija@aija.org.au 

Update on Ongoing AIJA Research

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

AI Decision-Making and the Courts  

This project will culminate in a guide for AIJA members and judges in the Asia-Pacific region on the use of AI and automated decision-making in courts. This guide will include a discussion of the challenges and opportunities that automated decision-making presents, and an evaluation of different techniques falling under the umbrella of AI. Then, examples of their use in different judicial contexts will be discussed, before finishing with examples of judicial responses to these techniques, drawing on legislation, case law, and rules in other jurisdictions.  

This research is being undertaken by a team of academics from the UNSW Allens Hub for Technology and Innovation (Lyria Bennett Moses), Macquarie University (Monika Zalnieriute), and the Law Society of New South Wales Future of Law and Innovation in the Profession (FLIP) Stream at UNSW Law (Michael Legg and Felicity Bell).   

The foundation of this research involves a survey of AIJA members, which was recently emailed to you. The survey seeks to understand the areas of interest to AIJA members, which will allow the team to ensure their research is as targeted and relevant as possible. We thank those who have completed it so far and ask that those members who can spare 10 minutes to help shape innovative research provide their insights. 

The survey is available here.  

Guide to Judicial Conduct (3rd Edition)

The AIJA publishes the Guide to Judicial Conduct for the Council of Chief Justices of Australia and New Zealand. Late last year, an amendment to section 2.3 of the Guide was made to reflect developments around discrimination and workplace harassment. 

We encourage AIJA members to read the amended section. Hard copies of the Guide may be ordered from the Secretariat, and a digital version is available here.  

Membership

Former Federal Circuit Court Judge Barbara Baker appointed Governor  

The AIJA congratulates former AIJA Council member, and former Federal Circuit Court Judge, Barbara Baker on the recent announcement of her appointment as 29th Governor of Tasmania. It is a tremendous and well-deserved honour in her distinguished career.

The Hon. Peter Heerey AM QC

The AIJA is saddened by the loss of one of its early members, the Honourable Peter Heerey AM QC, who died on Saturday 1 May 2021. Peter was a key figure in the AIJA, serving as  Honorary Secretary until 1987 and sitting on the Council until 1990. Peter played a pivotal role in the foundation of the AIJA, securing vital funding and grants in the early years, and assisting with the growth of the membership. In recognition of this, Peter was made an AIJA life member in 1986.  

Peter continued to support the AIJA in recent years, including in supporting the provision of legal resources to Timor Leste, and in assisting the production of ‘Improving Justice: A history of the Australasian Institute of Judicial Administration’ (2014).  

Peter had a distinguished career, including as a Justice of the Federal Court of Australia from 1990 to 2009, as well as his subsequent appointments as President of the Australian Defence Force Discipline Appeals Tribunal (2000), Deputy President of the Australian Competition Tribunal (2003), a Presidential Member of the Administrative Appeals Tribunal (2005), and Chairperson of the Australian Electoral Commission (2009-14).  He was awarded a Member of the Order of Australia in 2012. 

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 3 includes: 

Andrew Hemming “Do Juries Understand the Criminal Standard of Proof of Beyond Reasonable Doubt?” (2021) 30(3) JJA 103.  

The High Court has stated that it is both unnecessary and unwise for a trial judge to seek to explain to the jury the meaning of “beyond reasonable doubt”, on the ground that the phrase is well understood in the community. This article respectfully disagrees with the High Court’s position and argues that Victoria has taken the appropriate course in enacting ss 63–64 of the Jury Directions Act 2015 (Vic). However, it is contended that both ss 63 and 64 can be improved by removing the requirement that an explanation of the phrase “proof beyond reasonable doubt” may only occur in response to a direct or indirect jury question. The argument is developed in the context of a number of sexual assault cases where the guilty verdicts have been overturned on appeal. 

Vicki Waye, et al “Maximising the Pivot to Online Courts: Digital Transformation, Not Mere Digitisation” (2021) 30(3) JJA 126.  

This article examines the potential to advance digital transformation within Australian Magistrates’ Courts, thereby enhancing access to justice and the efficiency of court services. It argues that, to date, technology has largely been used to “digitise” existing practices, rather than to fully embrace the opportunity presented by an inherently digital environment. Further, a shift has occurred as a result of the “COVID-19 pivot”, with greater receptiveness to more expansive and transformative uses of technology by courts. This research investigated the feasibility, scope and character of an online dispute resolution system for residential tenancy bond disputes. This article builds on the experience of this project to argue that key lessons can be applied more generally to improve users’ experience of online courts and tribunals, and to deliver just outcomes more efficiently online, in reduced timeframes and with cost savings for all participants and the legal system. 

Volume 30, Part 2 includes:

Jeremy Patrick “Path Dependency, the High Court, and the Constitution” (2020) 30(2) JJA 51.  

Path dependence is a concept that originally arose in the field of economics before gaining currency with political scientists and historians. The essence of path dependency is that temporality matters: once a decision is made, it often becomes “locked-in” and persists despite the existence of more efficient or otherwise better alternatives that could become apparent later. The tentative hypothesis advanced here is that the concept of path dependency is useful for understanding why some doctrines of Australian constitutional law have changed dramatically since first developed while others remain largely the same. An example of one arguably path-dependent line of doctrine and one arguably non-path-dependent line of doctrine are discussed and analysed to demonstrate the possibilities and limitations of the theory. 

Julia Quilter, Luke McNamara, Tamara Walsh and Thalia Anthony “Homelessness and Contact with the Criminal Justice System: Insights from Magistrates in Australia” (2020) 30(2) JJA 64.  

On a regular basis Australian Magistrates sitting in high caseload criminal courts are required to make important high-stakes decisions about a defendant who is homeless. As part of a national study of the relationship between criminalisation and homelessness this article reports the findings of qualitative interviews with 27 Australian Magistrates. Participants identified multiple challenges for judicial decision-making – about matters like bail and sentencing –where the defendant’s homelessness, and associated complex needs and disadvantage, cannot be separated from their “offending” behaviour. Magistrates drew attention to a range of problems including: time pressures that prevented them from gaining a detailed understanding of the defendant’s circumstances; and the conundrum of seeing a fine as the only suitable punishment for a person already experiencing severe socio-economic disadvantage. In addition to recognising the need for wider action to reduce the extent of homelessness, participants identified a range of possible reforms within the criminal justice system which could reduce the compounding effect that people experience when homelessness brings them into contact with the criminal courts, including the adoption of therapeutic jurisprudence approaches. 

Natalia Antolak-Saper “COVID-19: An Exceptional or Surrounding Circumstance for the Purposes of Bail and Sentencing?” (2020) 30(2) JJA 81.  

COVID-19 has had a significant effect, globally and domestically, on both individuals and institutions. One of these is the operation of the criminal justice system. Measures aimed at “flattening the curve” such as social distancing and lockdowns, have resulted in significant disruption to bail, criminal jury trials and prisons. Although courts have acknowledged that the pandemic will be an issue of concern, they have been understandably reluctant to express general statements of principle detailing how it should be considered by courts. 

This article considers the impact of COVID-19 in the context of bail and sentencing, using the State of Victoria as an example. Through an analysis of Victorian Supreme Court bail and sentencing decisions between the period of February and August 2020, this article demonstrates that an overwhelming number of decisions categorise the pandemic as either exceptional or compelling circumstances for the purpose of bail, and as a mitigating factor for the purpose of sentencing. These decisions are of precedential value for lower courts and may also be relevant to other Australian and cognate jurisdictions. This analysis may also inform policymakers in developing criminal justice measures to appropriately deal with this and future pandemics. 

New Publication: “Judging and Emotion: A Socio-Legal Analysis” 

“Judging and Emotion: A Socio-Legal Analysis” (Routledge 2021) is the latest outcome of the Judicial Research Project at Flinders University. Over the past two decades, the Project, led by Matthew Flinders Distinguished Professor Sharyn Roach Anleu and Emerita Professor Kathy Mack, has undertaken in-depth examination of the everyday work experiences and attitudes of the judiciary, through interviews, court observations and national surveys of the judiciary.  http://sites.flinders.edu.au/judicialresearchproject/  This research is the basis for the insights into the role of emotion and emotion work in judging discussed in this book, and for our previous book, Performing Judicial Authority in the Lower Courts (Palgrave, 2017).  

Judging and Emotion investigates the place of emotion in judicial work. It shows how judicial officers understand, experience, display, manage and deploy emotions in their everyday work, in light of their fundamental commitment to impartiality.  This book challenges the conventional assumption that emotion is inherently unpredictable, stressful or a personal quality inconsistent with impartiality. Rather, it documents the many ways that emotion, emotional capacities and emotion work are integral to impartial judicial practice. 

https://www.routledge.com/Judging-and-Emotion-A-Socio-Legal-Analysis/Anleu-Mack/p/book/9781138893023  

Many magistrates, judges, court staff, court administrators and heads of jurisdiction in all courts throughout Australia have contributed to every stage of this research.  Judicial professional associations,  judicial education providers and other organisations have also been instrumental in supporting the research. In particular, the AIJA has provided significant practical and financial support, as formal collaborator in grant applications, facilitating access to courts and the judiciary, and generating opportunities to present  and publish research findings.  

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/.

In this issue: