Transforming court governance in Victoria

2019

This article critically analyses the landmark reform of the Victorian court system from a comparative international perspective. It is argued that the institutional design of Court Services Victoria ('CSV') was largely driven by a desire to protect judicial independence from the executive government and partly also to enhance the institutional capacity of the judiciary to effectively respond to the emerging social, political and legal challenges. Despite the establishment of CSV, the legislation preserves certain legacy administrative arrangements that impeded court administration in the past, such as the internal governance arrangements in the courts and the absence of clearly defined lines of administrative responsibility. The article also argues that the legislation confers too narrow a function on CSV that focuses on the provision of basic technical and administrative support to the courts. The proposed alternative would be for CSV to assume a much broader developmental ...

This article analyses the emergence of judicial councils and their role in facilitating greater judicial control of court administration in Australia and other countries. The article scrutinises the arguments in favour of greater judicial control of court administration, before moving on to examine the traditional policy challenges of judge- controlled court systems, such as to develop an effective system of administrative accountability and to devise an institutional framework for a judicial council and courts that is effective, relevant and accountable. The article argues that the transfer of responsibility for court administration from the executive government to an independent judicial council has the potential not only to safeguard judicial independence, but also to improve the quality of justice and assist judges adopt new forms of accountability in court administration. It is argued that the introduction of formal and transparent administrative hierarchies within the judiciary is both justified and necessary in order to improve court performance, enhance the social legitimacy of the courts and reinforce judicial independence. The final part of the article outlines the basic institutional contours of a modern judicial council that can assist the courts achieve these goals and respond to the challenges of modern court environment.

Our contribution refers both to the description of the devolved court systems and the administration of the United Kingdom (UK) Supreme Court. The common element in the model of the administration of courts in England and Wales, Northern Ireland and Scotland is the establishment of a separate independent managing body (agency) at the central level. In turn, the Supreme Court is more independent because its administrative matters are regulated at the internal level. Nevertheless, the Chief Executive of the Court, who is appointed by the Lord Chancellor upon consultation with the President of the Court, allows the argument that the impact of the executive branch on issues about the administration of the supreme judicial authority in the UK has not been completely eliminated.

The paper focuses on the notion of court administration in a strict sense and constitutes a proposal to differentiate and to assess the main models relating to this issue, which occur in contemporary democratic countries. We are aware that each model has its benefits and limitations, and the choice of a concrete model may be determined by various factors, inter alia, local tradition, legal and political culture, and last but not least, the hierarchical position of courts. Nevertheless, it is also argued that an anarchic attitude, with which someone can easily separate the administrative domain from the judicial sphere of courts’ activities, should be rejected. For this reason, we are in favour of the autonomic model that endows the judiciary with free powers in the current management, budget allocation and other aspects of court administration. However, it seems natural for the executive power (as responsible for implementing various policies of the state) to retain its influence on courts in financial and purely technical matters, for instance. The requirement for the separation of powers and the value itself of the independence of judicial organs as guarantees of the just dispensation of justice are much more important here.

2006

for their dedication, hard work, cooperation and support these past two years. I also wish to thank our Provincial Court advisors, Chief Justice Brian Lennox and Madam Justice Kathleen McGowan, for their participation and advice. Thanks to Chief Justice Beverley McLachlin and her executive advisor Nancy Brooks for their help and support. Thanks to all who contributed to the success of this Report by participating in interviews and seminars, including all the members of the Council and numerous Deputy Ministers and other administrative officers of Courts across Canada.

2018

Court management may be defined as the administration inside the court and outside the case. It is inside the courts, so court management does not concern the general administration of justice. It is outside the cases, so court management does not deal with the administration of cases, the so-called case management. Yet, these three fields belong to the same category of judicial management or judicial administration, and there is some overlapping and even confusion. As a matter of fact, the concept of court management is not completely settled. In a descriptive approach, it can be said that court management deals with leadership inside a court, the relationship between the judges and court staff, the allocation of cases, the evaluation of judges and court staff, the court budget, the real estate, the maintenance and security of the building, the new technology, human resources and judicial communication. Court management deals with the different councils and assemblies of the court as well as with specific planning. This General Report is based on fifteen national reports (outside China). The approach to court management may vary according to the organization, the tradition and the location of the country studied (for example, the role of the public prosecutor in court management may vary). Court management is becoming a common concern everywhere in the world as part of the efforts to avoid backlogs, unreasonable duration of proceedings and costly litigation. It seems that the tasks of management are more and more given to a specialized clerk (the director of clerks or court manager) while the role of leadership remains in the hands of the head of the court who is usually a judge. The management we are considering is a new management based on indicators, objectives and evaluations coming from the new public management. Could it be possible that the common law is more at ease with new management than the civil law? Since the judge is appointed at a certain mature age, usually forty-five in common law countries, and sometimes with the legitimacy of election, there is no risk of competition between court leadership and court management, and so between court management and procedural law. Conversely, in civil law countries judges are considered as civil servants and are chosen at a much younger age, around twenty-three, and without electoral legitimacy. As a result, there is a risk of competition between court manager (director of clerks) and judges. After the executive model based on hierarchy and the management model based on indicators and evaluation, this paper suggests that a third model of court administration is possible: the relational model based on coordination. The principle of cooperation between judges, parties and lawyers applies to case management and procedural law in general. It could be said that the principle of coordination is the equivalent of the principle of cooperation in the field of court management. One result of this is the formation of court committees and the holding of regular meetings so that staff, judges, citizen and lawyers can improve together the functioning of the court. 9.1.2.1. Specific responsibility for management tasks in civil law countries. 9.1.2.2. Specific responsibility for management tasks in common law countries. 9.2. Judges-assessments and bonuses. Chapter 10. Budget of the Courts and the Justice System. 10.1. Budget autonomy in civil law countries. 10.2. Budget autonomy in common law countries. Chapter 11. Psychosocial and Security Risks. 11.1. Psychosocial risks. 11.2. Security risks. Chapter 12. Court Planning. CONCLUSION BIBLIOGRAPHY 10. Is there a general assembly, a governing council (composed of staff and stakeholders, such as a bar representative, a media representative, a city hall representative in the court)? 11. Is there compulsory or voluntary planning for several years in the courts? If yes, who is responsible for initiating and carrying out the plan?

2016

The article seeks to advance the policy debate about court governance by reference to recent developments in Australia and other countries. It is argued that a corporate-style management board should be responsible for the judicial and administrative operations of the courts, with administrative judges and the CEO acting on the board as executive directors. It is contended that such an arrangement would be capable of achieving greater structural separation between ownership and management in the courts, which is regarded as an essential postulate of modern corporate law, because it promotes more expert and efficient management of large organisations. The paper also seeks to resolve the inherent conceptual difficulties involved in applying the corporate law theory to the courts, by arguing that the so-called stewardship theory of corporate governance is capable of reconciling the key principles of modern corporate board design with the unique institutional character of the judicial o...

International Journal for Court Administration, 2009

In 1993 it was for me the first time to be invited as an expert for the Council of Europe in the framework of developing the judiciaries in Central and Eastern Europe in 1993, to be followed by many other activities abroad to date. Prior to that time, although European judiciaries had some contact with each other, the contacts were not extensive because judicial structures and judicial management were regarded as a national issue. On this first occasion, I made two important observations I will never forget. First, my presentation on the role of the judge in a democratic society seemed to me as kicking in many wide open doors, but this appeared not to be the case. Secondly, my audience asked me how the situation on enforcement in The Netherlands was, which appeared to me as a rather strange question, as this is not a real problem in my country. Both aspects have in common, that matters that seems to be natural and going without saying, are not as natural as they seem. This article is written from the perspective of a court president in The Netherlands, a so called civil law country. In theory, in a civil law country, judges and lawyers in civil and commercial cases base their actions on the application of the law and its interpretation. Moreover, in criminal matters, the courts use inquisitorial procedures which differ from the adversarial procedures used in common law countries. The field of court management is not highly developed because of the tension between the need for judicial independence and judicial organization. There are many examples of this tension, including the fact that courts may be subject to budgetary limits which themselves may intrude upon judicial independence. For instance, suppose that a judge believes it necessary to appoint an expert to answer a certain scientific question, but the expert is expensive and budgetary considerations preclude the appointment. When I was involved in the process of the budgets of prosecutors' offices and courts, this question frequently arose. In an effort to deal with this problem, part of the courts' budgets were treated as open-ended even though courts rarely spent these open-ended budgets lavishly. This reminds of another question: who pays for the expenses in criminal cases including pretrial investigation. In fact, the prosecutor is the "interested party", but often the investigating judge decides on investigating measures, often rather costly, like hearing witnesses abroad, which requires the presence of the prosecutor and the clerk, but also the defense counsel of the accused. We found the practical solution that all costs in criminal cases are born by the prosecutors' office, as I said because it is their interest at stake, but also because a prosecutors' office is not there to win or to lose, but to guarantee a fair trial! Budgets This brings me automatically to the question of budgeting of courts (and prosecutors offices). For some reason this is always and everywhere a very sensitive issue, although the budget itself is relatively low. In The Netherlands the GDP amounts to almost of € 600 bn, while the total budget for the Ministry of Justice is € 5,7 bn, including the budget for the judiciary(courts only). The budget for the judiciary is € 800.000.000 or _+ 0,13% of the GDP., not a sensational proportion of the state budget I would say. To put matters in perspective, the total budget for the police agencies amounts to € 5.1 bn But nevertheless, often it seems that budgeting for the judiciary is something like making a walk with a tiny stone in your shoe. Governments may be reluctant to provide the judiciary with a large budget because they cannot be controlled. So, in the eyes of the Ministry of Justice or, rather, the Ministry of Finance, the judiciary may seem like a bottomless pit because it always seems to be asking for more money without explaining exactly what it will do with the extra money. At this point, it may be useful to explain how the judiciary is organized in The Netherlands. Apart from the Supreme Court, which is organized separately and has its own budget, all courts in The Netherlands are subject to the control of an independent body, the Council of the Judiciary. This Council is composed of five members, three of whom come from the judiciary and two of whom come from outside the judiciary. The members of the Council are appointed on proposal from the judiciary for a period of six years. The Council has a 100 person staff and makes a proposal to the Minister of Justice regarding its proposed budget for the following year. The minister of Justice is obliged to follow this proposal unless he asks Parliament for permission to deviate. The individual courts must report on their performance to the Council for the Judiciary, and their financial administration is subject to the review of an external auditor.