Newspaper analyses of the work of judges by reference to numbers of matters heard, words written and time taken can be overly and unfairly simplistic, but they are at least some publicly accessible source by which the operation of the judicial system can be assessed.
The difficulty is that the more substantial analyses behind and beyond these simple journalists’ figures are not themselves extracted and analysed, and perhaps are beyond the journalistic and readership level of most newspapers to allow or warrant doing so.
That point is one taken from the recent speech of the NSW Chief Justice Tom Bathurst – ‘Who judges the judges, and how should they be judged?’. He refers to recent newspaper comment on the ‘efficiency’ of judges, among other things, in the Australian Financial Review, a newspaper.
In addressing that, and a wide range of related matters, the Chief Justice refers to the rather strong views of Mr Dyson Heydon, a former High Court judge, who has recently been critical of judicial delays and more.
Mr Ken Hayne
Rather oddly, the Chief Justice did not refer to the similarly critical views of Mr Ken Hayne – given in ‘The Australian Judicial System: Causes for Dissatisfaction’. Mr Hayne’s critique of the legal and judicial system is of like authority given his former position as High Court Judge and most recently in conducting the Banking Royal Commission, and is perhaps more severe.
Instead of attempting to explain Mr Hayne’s views, some few words are given:
that time for a judge to deliver a reserved judgment, if it cannot be given ex tempore,
“must come to be measured in days (perhaps in weeks) but never in months”;
that judgments must be short and avoid
“wordiness and verbal complexity”;
and that lawyers and judges need to give up their
“fetishism of words”.
He concludes that the system cannot continue as it is and that new and different ways need to be adopted. To
“stand still would condemn the Australian judicial system to irrelevance” and the “lasting damage to Australian society would be very large”.
The Chief Justice does emphasise the evident transparency of judicial conduct; all decisions are published and the reasoning, and time taken, can be viewed. Transparency assits public confidence.
But courts could go further. For one thing, many courts do not offer ready access to the data base of pending judgments, the NSW Supreme Court being one; the open database of another court, the Federal Court, is rather clunky. Even the High Court’s old website is only now being reviewed.
As to time taken to deliver judgments, it would not be difficult to publicise an ongoing list of judges’ reserved judgments, with progressive time elapsed since the hearing. The task of a judge is heavy, and judgment writing is a large component of that, but transparency, as the Chief Justice says, is important.
Certain litigants and their lawyers need not be spared such transparency as my further comments – pending – will suggest.
Administrative Appeals Tribunal
Which brings us to a parallel issue about, if not judges’, then decision makers’ performance, being those of members of the Administrative Appeals Tribunal. There are claims made that it has a large number of ‘political appointments’; I leave it to others to say who these are, and whether that prejorative term is warranted. These and other appointees are being asked, it is reported, to ‘update their CVs’ in order for their reappointment to be considered, yes or no.
It is assumed that the review report on the AAT, by Mr Ian Callinan, another former High Court judge, will be released, as a matter of transparency, and then taken into account in that AAT appointment process.
One measure of their performance, at least, is the ‘AFR method’.
For example, in relation to those new members appointed, how may decisions have they given, of what nature, and, bluntly, in how many words? As to the latter, being at one level a very unsophisticated measure, a quick review of AAT decisions does suggest that those of 3 or 4 pages only are indicative of fairly straightforward legal and factual matters, rather than being those short succinct decisions on difficult matters called for by Mr Hayne.
It would be possible to go further, and calculate, say, the costs of each decision of any AAT member according to what are reported as their salaries. But that would be simplistic indeed.
Justice does cost, and its costs cannot be avoided, but it needs to be kept under scrutiny, and some pressure maintained – transparency is one way – to ensure, as Mr Hayne says, that new and different ways are constantly suggested, tried and if successful, adopted.
[references to the articles are available on request]