Ideal Elements in a Model of Court Administration: An Examination of the South Australian and New South Wales Models

Abstract

The tension between judicial independence and accountability underpins much academic and judicial writing on the subject of court governance. Independence of the judiciary is fundamentally a cornerstone of democratic societies. It is a function of the courts to serve the public, and independence of the judiciary should, in turn, support public accountability. Justice must be done, and be seen to be done. Administrative accountability of the judiciary should ensure that public accountability is maintained, and judicial independence strengthened. This thesis explores the issues relating to judicial independence and accountability in light of an effective regime of court governance of State judicial systems in Australia. The fundamental inquiry of this study is whether an independent judiciary is best ensured by effective administrative autonomy. Two essential premises are accepted here. First, the tension between judicial independence and accountability is not necessarily unhealthy. Secondly, judicial independence from Parliament and the Executive is dependent upon adequate resourcing of courts. The context of this thesis is the significant changes to the court governance system in Australia during the 1990s. The last decade has seen the rise of the managerial judge. An increase in the volume of litigation before the courts, the acknowledgement of the problem of finite resources, and delays in the hearing of cases, have all meant that more attention be given to the administration of courts. The judicial arm of government now assumes more and more control over internal administrative processes in relation to judicial administration. No longer are judges subject to the control of lawyers in their courtrooms. Indeed, judges have come to control the flow and processing of cases which come before them. In order that the judiciary adequately performs this function, the issue to be addressed is whether judges should have control over all administrative aspects of the courtroom, or whether these services are best undertaken and performed by the Executive. This in tum centres on the paramount consideration of judicial independence and accountability.