Judicial Education: The Proposal for the Australian Judicial College
The Hon Justice Catherine Branson, President, AIJA
As there is apparently a perception abroad that the AIJA might not be fully supportive of the proposal for the establishment of an Australian Judicial College, or might feel threatened by the proposal, I would like to outline briefly the position of the AIJA in this regard.
Certain Council members of AIJA have for quite along time considered that whilst AIJA was making major and valuable contributions to the enhancement of judicial performance in Australia, it could not realistically aspire to fill in Australia the place filled in the U.S. by the Federal Judicial Centre or the National Judicial College, in Canada by the National Judicial Institute, in England and Wales by the Judicial Studies Board and now in N.Z. by the Institute of Judicial Studies.
There are a number of reasons for this. The first is that the Rules of the AIJA provide that its objective is a wide one, namely “to promote excellence in the administration of justice throughout Australia and its surrounding region.” The strategy of undertaking “education including programmes of orientation and judicial continuing education” is part only of one of eight strategies identified in the Rules of the AIJA for attaining its objective. Without a dramatic increase in both its financial and staff resources, the AIJA could not realistically aspire to run a national judicial college. Even if it were provided with such resources, for it to do so would be likely to distort in a serious way the proper balance between the strategies which its Rules require it to undertake. Moreover, whilst
the governing council of the AIJA has strong judicial representation, the AIJA is not an organisation of judges or even an organisation answerable to Australian judges. Its strength as a body committed to the promotion of excellence in judicial administration is that its members include court administrators; legal practitioners including government lawyers and legal academics; and others, whether legally qualified or not, with an interest in judicial administration. It will on occasions do things that a good number of judges don’t approve of. Many people think, and I am one of them, that to be truly successful an Australian judicial college should be not only controlled by judges, but the Australian judiciary should feel, to use a piece of management jargon, that it owns it.
This is not to say that the AIJA should have no part to play in the governance of an Australian judicial college. There is much to be said, in my view, in favour of the AIJA playing a part in the governance of an Australian judicial college. Its experience, areas of interest and width of representation could prove of great value in the governance of the college. It could avoid the risk of the college governance becoming cut off from the expertise and experience of other disciplines and from community opinion. However, involvement is a very different thing from control.
It follows from this that concerns that the AIJA might feel threatened by the establishment of an Australian Judicial College are not well-founded. Indeed, as Chris Roper has said, the AIJA has been at the forefront in rekindling interest in the establishment of a judicial college for Australia. The Council of the AIJA has taken the position that the AIJA should promote the establishment of an Australian judicial college. The AIJA
approached the Judicial Conference of Australia and suggested the establishment of a joint working party to consider ways in which interest in the establishment of an Australian judicial college could be rekindled and the proposal advanced. The AIJA proposed to the JCA that Mr Chris Roper be retained to prepare a discussion paper which could be published by the AIJA and the JCA. I conferred with members of the ALRC regarding its recommendations concerning an Australian judicial college. The AIJA has offered to provide assistance to the working
party which the Standing Committee of Attorney-General has proposed to give consideration to the recommendation now made by the ALRC that an Australian Judicial College be established. It may be that one or more Council members of the AIJA will become members of the working group. As to Chris Roper’s question, what would the establishment of such a college mean for the AIJA, the answer at a superficial level is simple enough. Whilst I will not be President of the AIJA at the relevant time, I feel able to say that it is most unlikely that the AIJA would seek to compete in any way with a judicial college in the presentation of unambiguously educational programmes, or the production of
unambiguously educationally oriented materials.
One would expect
close co-operation at both the governing council level and at the executive level between the two bodies to avoid duplication of effort at the margins of core activities of the two bodies. So one would expect, I think, that when it was ready to do so, the college would take over, at least the role of the AIJA in the running of the judicial orientation programme currently presented by the AIJA and the NSW Judicial Commission jointly. This programme is now recognised as being of
very great value to new judges and thus to society generally. It will
become of even greater importance if increasing numbers of judges are appointed from backgrounds other than the background provided by the senior Bar. However, conferences of the kind of the Technology for Justice Conferences would, it seems to me, be likely to continue to be seen as appropriate AIJA initiatives rather than as matters for the judicial college. Skills training for judges, and conferences touching upon
judicial administration, might be undertaken by either the AIJA or a judicial college. If a decision is taken, on either a temporary or a permanent basis, that a judicial college should not serve both Australia’s judiciaries and its administrative decision makers, AIJA would continue its commitment to serving the members of Australia’s numerous and important Tribunals. As to the magistracy, it seems to me to be
unthinkable that an Australian judicial college would not regard this, the largest and in many ways the most public arm of the Australian judiciary, as its most important client group. As to Chris’s question of what would the college do, like Chris I think that the only sensible option is for it to be both a designer and a provider of programmes. As I have already mentioned, the designing and
presentation of orientation programmes would seem to be an important function for the college. Continuing judicial education in areas of
substantive law including courses designed to keep judges up to date with important legal developments outside their own core areas of operation, would seem to be another. What Chris has called judicial skill development, and what may be called court craft (eg trial and jury management, judgment writing, evidence assessment etc) might, as I have said, be a matter of negotiation between AIJA and the college. In my view, social context programmes or topics such as ethnicity, gender and class, will be seen as vital aspects of the college’s programmes.
In part I would envisage that the college would develop and present programmes of general interest to Australia’s judiciary which could be attended by judicial officers from a range of courts. These programmes could be centrally presented or presented in different places around Australia. It would, however, be highly desirable if the college were also to act as a resource to individual courts or courts sharing similar jurisdiction, so that, at the request of those courts, programmes of specific interest to those courts could be developed and presented in those courts. It may also be that the college could develop what might be called “travelling circuses” in areas such as, for example, sentencing. Such programmes would have a core element suitable for presentation generally but also add-on elements particularly designed for individual jurisdictions which reflect jurisdictional differences. It would, it seems to me, be highly desirable if the college were able to lift from individual courts, the need to devote scarce resources to the development of their own educational programmes, particularly where both efficiency and quality would be enhanced by a broader approach.
In closing may I say that in Australia we can, I think, rightly feel pride in the quality and integrity of our judiciary. But as the Access to Justice Advisory Committee pointed out as long ago as 1994 “transforming a skilled lawyer into a skilled jurist can be a tricky manoeuvre”. Maintaining the judiciary as an up-to-date and enthusiastic body is also a challenge. The workload of most Australian judges is increasing and is likely to continue to increase. This places pressure on the time that individual judges have available for private study and reflection. We will be assisted by well-directed and structured professional help in maintaining appropriately up-to-date legal learning and judicial skills.
Indeed, it may be said that it would be markedly counter-intuitive to find that the sort of high level educational assistance to judges that has been found to be desirable in Canada, the USA, Britain, Wales and N.Z. would not also assist the Australian judiciary.
However, for an Australian judicial college to work well two things in particular will be necessary. First, it will have to belong to and be
controlled by the judiciary. In practice this means both the judiciaries of the States and territories and the federal judiciary. This will involve
complexities which the Judicial Commission of NSW has not had to face. The Australian judicial college will not be able to become part of the third arm of any particular government – it will need to be closely allied with the third arms of a number of governments.
Secondly, the college and its client courts will need to have available sufficient financial resources to enable the college to work effectively. Unless the establishment of the college results in an increase in the educational opportunities taken up by judicial officers, it will be seen as of only marginal success. For this reason it is likely that significantly increased funding for judicial education and training will be necessary, whether such funding is provided to the college directly or to the courts themselves. The college will need skilled administrators as well as
skilled educators. It will need sufficient resources to ensure that it can attract high quality people. If the college is to be even in part funded by the fees paid for judicial officers to attend programmes, the courts will need the funding to pay such fees.
Moreover, it is no longer the case, if it ever was, that the Australian judiciary has time on its hands. The workload carried by judicial officers
is, speaking generally, substantial and relentless. There are increasing demands for judges to make themselves available to undertake tasks, undoubtedly socially valuable tasks, outside of the courtroom. These tasks range from supporting educational programmes run by Law Schools, Law Societies and Bar Associations, to sharing experiences with foreign judges either here or in their own countries, to involving themselves in community activities. For the college to be successful, judges will need in addition to involve themselves in the teaching programmes of the college. Judges will need to have the time to attend programmes offered by the college. If it is accepted to be desirable, as I think that it must be, that Australia’s judiciary should devote appropriate amounts of time to judicial studies, the workloads of individual judges will have to be such as to allow them to do so without the making of unreasonable personal sacrifices.
For those who might be alarmed at the cost implication of these remarks, let me quote, possibly slightly inaccurately, the famous aphorism of Madame Justice Rosie Abella of the Court of Appeal of Ontario: “What are we doing seeking to calculate the cost of justice when we have no idea of the cost of injustice.”
It will undoubtedly cost money to establish and operate a high quality Australian judicial college. However, we are ill-equipped even to
attempt to make a judgment of the future cost of failing to do so.