THE RISE OF JUDICIAL SELF-GOVERNANCE IN THE NEW MILLENNIUM.

• Date: 01 April 2021
• Author: Bunjevac, Tim

CONTENTS I Introduction II Judicial Self-Governance in Victorian Courts A Problems Associated with Judge-Managed Courts B Developing Systems of Judicial Administrative Accountability C Judicial Management Boards in the County and Supreme Courts D Future Research into Judicial Management Boards E Comparison with the US and the Netherlands F Internal Judicial Independence under Judicial Self-Governance III Judicial Self-Governance and Workload Organisation A Recent International Developments in Workload Measurement B Criticisms of Weighted Caseload Systems C Judicial Councils and Courts: A Source of Support, Protection or Hindrance? D CSV and the Courts: Areas for Research IV Judicial Self-Governance and the Separation of Powers and Responsibilities for the Court System A The Scope of the Minister's Powers and Responsibilities for the Court System B The Judiciary's Capacity to Influence the Government and Parliament V Conclusion I INTRODUCTION

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 workload' and 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?' (1)

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. (2) Victoria thus joined South Australia (3) and the Australian federal courts (4) 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; (5) 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. (6) 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. (7)

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. (8) 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'; (9) it can be 'reduced and even abused', (10) especially if judges fail to develop the necessary administrative capacity to manage the court system in a more challenging institutional and political environment. (11)

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. (12) 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, (13) at least when compared to contemporary international scholarship in this area. (14) Two of the most ambitious empirical studies of judicial self-governance that were conducted in the United Kingdom ('UK') (2011-15) (15) and Europe (2016-20) (16) have practically gone unnoticed in Australian constitutional law circles, even though they pointed out 'huge' (17) 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. (18) 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. (19) 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 Kosar 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' (20) and place us in a position to devise best-practice organisational solutions for the future. (21) 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, (22) 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). (23) Issues of psychological stress, wellbeing, independence and impartiality are most relevant in this context, (24) 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 (25) and workload measurement, (26) which are the key to improving the effectiveness of court operations. (27)

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...