Courts on both sides of the country in open revolt over funding

Courts on both sides of the country are in open revolt over funding, with two Chief Justices recently going public to protest the risk to judicial independence posed by budgetary pressures. 

In remarks to a parliamentary study group, Chief Justice Marilyn Warren of the Supreme Court of Victoria has highlighted the importance of adequate funding for the independence of Australian courts.

Her Honour noted that the separation of powers between the executive, legislative and judicial branches is essential to Australia’s liberal democratic form of government. As a result, Her Honour noted, the “society in which we live is governed under the rule of law applied by the courts.”

Courts need money to function effectively, however. Without appropriate funding courts “do not stop performing their fundamental functions as part of the third arm of government” but “their performance is slowed down, and justice may be delayed”, Her Honour said.

The Chief Justice put the matter in rather more stark terms in the Court’s 2012 Annual Report:

“Unless and until the Supreme Court is provided with adequate technology, it cannot meet the needs of modern litigation. The year 2012-2013 will see the Court move to a strong Technology Strategic Plan, which will provide the focus of all that we do: from registry to trials to appeals to data collection. At present, our IT is inadequate and must undergo a revolution to match modern expectations.”

Similar problems were identified for the facilities and buildings in which the Court is housed.

The International Framework for Court Excellence, a quality management system for court performance, underscores the importance of adequate funding for court processes.

“Excellent courts have sufficient material resources to fulfil their objectives and carefully manage and maintain these resources. Poor quality of courtrooms, inadequate buildings, a lack of office space for judges, court staff, and court records, inadequate office material and equipment, including computers, will have a negative effect on the court’s performance and the quality of the services delivered.”

When the Supreme Court of Victoria completed a recent self-assessment, however, it achieved no score above 60% for any of the eight KPIs identified by the Framework.

But the Supreme Court of Victoria is not alone in its plight.

This month Chief Justice Wayne Martin of the Supreme Court of Western Australia opened fire upon the State’s Attorney General,  Michael Mischin, in an unprecedented written statement criticising a recent government decision not to fund new web streaming facilities for the Court.

“A project had been initiated … to provide equipment and facilities necessary to allow the Supreme Court of Western Australia to introduce web streaming” and  the Attorney General’s “Department had advised the Court that there was sufficient provision within the relevant budget to enable the proposal to be implemented”, the Chief Justice wrote.

“Regrettably, the Attorney General has intervened to stop the project from proceeding.”

Chief Justice Martin remarked that “the Attorney General’s decision prevents the Court from using contemporary technology to improve public access to proceedings in our courts.”

The Chief Justice completed his striking salvo by observing that “the position taken by the Attorney General on this issue represents a threat to the independence of the judiciary in this State.”

“While the provision of resources for the Courts is a matter for government, the Attorney General has used his ability to block the modest resources required for this proposal as a means of imposing his personal views on how the Courts should conduct their business, thereby usurping the role of the judiciary.”

By convention, Australian courts only express concerns about funding through their annual reports and rely on the relevant Attorney General to advocate for them.

Both Chief Justices have now broken that convention.

Chief Justice Warren, for her part, supports reform to the system by which the Victorian courts are funded.

“The independence of the judiciary would be more effectively recognised if governance arrangements for courts in Victoria were changed”, Her Honour said.

“Indeed, the Attorney General for the state of Victoria, the honourable Robert Clark has requested that the heads of jurisdiction form an interim advisory council in anticipation of the establishment of a courts service which will be wholly independent of the department of justice by later this year.”

Chief Justice Wayne Martin may now share that sentiment.