'The Rise of Judicial Self-Governance in the New Millennium' by Tim Bunjevac in (2021) 44(3) Melbourne University Law Review 412 comments
A vast majority of court systems in the world are managed by the executive government, but a small and growing number of jurisdictions, including Victoria, South Australia and the Australian federal courts, have transitioned to judicial management of the court system. This article analyses the emergence of new institutions of judicial self-governance in Australia and overseas, with a particular emphasis on the establishment and regulation of judicial councils and judicial management boards inside judge-managed courts. The article also provides an introductory overview of the emerging scholarly discipline of judicial self-governance by identifying a range of unexplored institutional design questions and research directions for consideration and adaptation by Australian scholars who may be interested in examining the regulation of judge-managed institutions from a legal, political, institutional, managerial or constitutional perspective.
Bunjevac asks
Imagine that you have been appointed professor of constitutional law or political science at a leading university in a particular country. You are asked to analyse a major court system reform that was introduced five years ago, which placed the judiciary in charge of the operational management of the court system. From the legislative provisions, you establish that the Reform Act was formally passed in Parliament in 2014, but are unable to gather any information about any consultations with the general public, legal profession, research institutes, non-government organisations or the academy in the lead-up to the reform. A brief media release states that the reform was approved following a closed consultation process involving only a handful of senior court officials and the government.
Through your research you establish that no law lecturer, professor, management expert, barrister, solicitor, prosecutor or judge commented on the Bill when it was introduced in Parliament, even though the proposed changes were intended to have a significant impact on the administration of justice in this country. Similarly, none of the major media outlets had shown any interest, and you are unable to locate any pre-reform media interviews with the chief protagonists, despite the fact that the changes directly affected the way in which hundreds of millions of dollars in public money were to be expended every year.
As you continue your research, you realise that even today little is known about the inner workings of the reformed judicial institutions or the way in which the changes have impacted upon the constitutional separation of powers. No empirical research or official evaluation of the reform has been undertaken by anyone, although there are rumours that unnamed court officials recently prevented a researcher from conducting an empirical evaluation of the reform on questionable grounds.
You turn your attention to ordinary officers who perform day-to-day tasks in the court system and find that most of them are working under relentless pressure, and that their levels of psychological distress are significantly higher than that among the general population. Disturbingly, you also learn that several judicial and court officers recently committed suicide, reportedly due to their ‘unrelenting workloadand ‘abuse of power’ by a presiding judge.
Is this another ‘vignette from a banana republic or a central European backwater recently emerged from authoritarian rule?’ In fact, this fictional story is partly based on actual events surrounding the landmark court system reform in Victoria, which introduced judicial self-governance in the courts and established an independent judicial council called Court Services Victoria (‘CSV’) in 2014. Victoria thus joined South Australia and the Australian federal courts as members of a select group of jurisdictions from around the world, where judges are fully in charge of court administration and seemingly in control of their own institutional destiny. In practical terms, this means that judges are now responsible not only for their traditional administrative arrangements that focus on case management and legal procedure; they also have assumed the responsibility to act as executive managers and policymakers for the financial, technical, administrative and human resources operations of the entire court system. Above all, judges are now responsible for generating new solutions that will improve the administration of justice and respond to a myriad of well-documented challenges that they inherited from the government-run system of court administration. But are judges and judge-managed institutions in a position to meet these expectations? No empirical studies have been conducted into the wider systemic effects of judicial self-governance in any Australian jurisdiction where it was introduced, despite a number of early-warning signals that warranted at least a scholarly enquiry. This article argues that the apparent lack of academic, political or general interest in this area is a concerning trend that may ultimately have unforeseen consequences for judicial independence and the administration of justice in this country. As recent experiences from a diverse group of international jurisdictions demonstrate, the institutional self-governance of the judiciary is not necessarily a ‘one-way path and an unquestionable good’; it can be ‘reduced and even abused’, especially if judges fail to develop the necessary administrative capacity to manage the court system in a more challenging institutional and political environment.
Accordingly, the principal aim of this article is to invite the Australian academic community to contribute to this process and take a closer look at the emerging institutions and scholarly discipline of judicial self-governance. Many important issues are at stake. First, what do we know about the concept of judicial independence in the age of judicial self-governance? While the traditional constitutional law lens has been preoccupied with the judiciary’s perennial quest for independence from the executive government, the evolving power of judges in court management and the establishment of judicial administrative formations have received ‘far less attention’, at least when compared to contemporary international scholarship in this area. Two of the most ambitious empirical studies of judicial self-governance that were conducted in the United Kingdom (‘UK’) (2011–15) and Europe (2016–20) have practically gone unnoticed in Australian constitutional law circles, even though they pointed out ‘huge’ policy and constitutional law implications of judicial self-governance.
Second, not much is known about the inner workings of the newly-established judicial institutions, such as judicial councils, judicial commissions or judicial management boards inside courts. This is a prospective area for scholarly enquiry, as most of these institutions have been chronically under-researched, while others have been classified as sui generis. It is perhaps due to their unique position within the judicial arm of government that these institutions have largely escaped the attention of empirical researchers from more established scholarly disciplines in Australia, such as political science, law, corporate governance, public administration and the organisational sciences. As a result, little empirical information is available about the internal operation of the judge-managed institutions or their broader systemic role within the court systems.
Undertaking scholarly research in this area will necessitate clear identification of the institutional ‘organs’ of judicial self-governance and detailed mapping of the courts’ internal divisions, stakeholders, rules and ‘constitutions’. These issues are explored, from a normative perspective, in Part I of this article, which seeks to examine the newly-established ‘judicial management boards’ in the Supreme and County Courts of Victoria following their transfer to judicial self-governance. However, as Kosař points out, only by conducting empirical research inside courts will we be able to fully understand the multitude of factors that can contribute to the ‘rise and fall of judicial self-governance’ and place us in a position to devise best-practice organisational solutions for the future. Over time, our research may even lead us to the development of an organic theory of judicial self-governance, perhaps initially through the adaptation of concepts borrowed from corporate governance and public administration theory.
Third, as the recent series of tragic events in the Victorian court system demonstrate, it is insufficient to direct our scientific enquiry at the normative, administrative and institutional levels alone; we must also analyse the personal experiences of individual judges and others within the judicial management structures to ascertain whether their actual role corresponds to that assigned to them on paper (if one is specified at all). Issues of psychological stress, wellbeing, independence and impartiality are most relevant in this context, but so are issues about judges’ competence to act as effective managers while addressing complex operational, procedural and case management tasks in their everyday work routines. Judicial leaders, academic researchers and court system stakeholders ought to be interested to know whether court officials have up-to-date knowledge about the latest international developments in areas such as caseflow management and workload measurement, which are the key to improving the effectiveness of court operations.
This takes us to the next important issue at stake: how can any identified problems and capability gaps be addressed, and by whom? Most courts in Australia do not possess the necessary resources, know-how or methodological prowess to undertake complex empirical studies that measure how different types of cases are impacting the use of judicial and administrative resources. Should this task ideally be undertaken by the court staff, managing judges, the judicial council, management consultancy firms, academics or someone else? Unfortunately, there are few — if any — court-system researchers in this country with the required technical expertise to manage such projects on their own. This is partly due to the fact that the latest, state-of-the art workload measurement systems employ sophisticated ‘casemix’ and artificial intelligence (‘AI’) technology that was originally developed for other industries. To address this ‘capability gap’, Part II of this article identifies the need for comparative empirical research into the jurisdictions that have successfully introduced such systems in courts, using a multidisciplinary approach to investigate the difficult questions involved in establishing such systems that have been identified in the literature: technological, procedural, managerial, legal and ethical issues.
Finally, for constitutional law scholars and political science researchers who are perhaps more theoretically-inclined, the emergence of institutions of judicial self-governance prompts a range of unexplored constitutional theory questions that have only recently been identified by international scholars. The central research question in this area will be to examine how the transition to judicial self-governance has changed the constitutional separation of powers. Part III of this article places this issue in the Victorian context by pointing out that the Victorian legislation does not regulate the powers of the Minister towards the judicial council and courts, and there are also no provisions that envisage any formal institutional interaction between the self-managed judiciary and Parliament. By contrast, the availability of explicit statutory guarantees of ongoing institutional engagement between the three branches of government was seen as being pivotal to protecting judicial independence in the UK following the landmark constitutional reform that took place in that country in 2005. Australian research that examined the impact of the Victorian reform on the ability of the judiciary to secure adequate funding, protect institutional independence and maintain adequate visibility in a crowded political arena would make a valuable contribution to this field .
Another constitutional ‘crisis point’ is also conceivable — that the self-managed judiciary has become too independent, indolent, unresponsive or unwilling to engage with the government, Parliament or other stakeholders. Accordingly, there is also a need for future research to examine how the ‘politics of judicial independence’ have played out in the new institutional environment: what formal or informal arrangements are in place to ensure that the new institutions of judicial self-governance remain ‘responsive’ to the needs of government and other justice system stakeholders whose work is intricately connected with the work of the courts? A further aspect that could be investigated in this area is whether there are any ‘hidden guardians’ of judicial independence within the other two branches of government, such as the parliamentary select committees, Presiding Officers, Auditor-General’s and Victorian Government Solicitor’s offices, departmental officials and others.
As the introductory overview of this article demonstrates, the establishment of new institutions of judicial self-governance necessitates a new scholarly agenda that goes beyond the traditional categories of ‘judicial councils’ or desktop analyses of the ‘models’ of court governance. Much more empirical work is needed to allow us to fully understand the growing international phenomenon of judicial self-governance with all of its dimensions, values, motivations and complexities. Indeed, as the concluding Part of this article points out, European scholars have already started ‘unpacking’ the discipline of judicial self-governance into smaller units, such as judicial councils, informal self-governance, ‘digital’ self-governance, ‘information’ self-governance, ‘regulatory’ self-governance, and ‘ethical’ self-governance of the judiciary. This article offers an initial contribution to this process in Australia by identifying a range of unexplored institutional design questions and research directions for consideration and adaptation by Australian scholars who may be interested in examining the regulation of judge-managed institutions from a legal, political, institutional, managerial or constitutional perspective.
