Many commentators have expressed concerns that litigation is costly, slow and inaccessible. The common perception is that the justice system is ‘in crisis’, or at least beset with extremely severe problems, and ‘getting worse’.
This ‘sky is falling’ mentality tends to induce paralysis – a sense that the problems are far too difficult to fix. However, extensive research by the Australian Law Reform Commission (ALRC) challenges these widely held beliefs.
The ALRC’s inquiry into the federal civil justice system, which began in November 1995, is the largest and most comprehensive ever undertaken in Australia. The ALRC has conducted or commissioned detailed empirical analysis of more than 4,000 case files from across the country, and consulted with hundreds of lawyers, judges, tribunal members and people who have recently used the civil justice system.
Our preliminary findings are contained in a major discussion paper Review of the federal civil justice system, released in late August. The document is the result of more than three years of consultation and research, concentrating on the Federal Court, Family Court and federal review tribunals. The ALRC is seeking public comment, before making its final recommendations for reform to the federal Attorney-General at the end of the year.
The ALRC has found little factual support for the crisis theory during its investigations. There is no litigation explosion in the federal civil justice system. There is no systemic, intractable delay in case processing or resolution in the courts and tribunals looked at by the Commission. Litigation and administrative review can be expensive and the ALRC proposes changes to reduce costs. However, the ALRC’s research refutes - at least for federal civil matters - the well-recited assumption that the justice system is open only to the very rich and very poor. A range of litigants uses federal courts and tribunals.
In fact, the ALRC discovered that some parts of the civil justice system are performing very well. For example, there has been consistent praise for the Federal Court as a ‘world class civil court’.
Other parts of the system, such as the Family Court’s procedures and case management system, need adjustment. There is also an overall need to address gaps in the civil justice system, especially in terms of setting ethical standards for lawyers and handling complaints against judges.
The Family Court of Australia
In the course of its inquiry, the ALRC has heard consistent criticism of the inflexible approach adopted by the Family Court to case management. These concerns were not directed at the quality of decision making, or at the integrity or professionalism of the judges and court staff. Rather, criticism is mainly directed at the way the Family Court views its functions and how it organises its dispute resolution processes. The ALRC found that the Court’s requirement that cases go through a series of set procedures added to costs and delay, and contributed to poor compliance with directions and orders.
Our consultations on the Family Court revealed a deep sense of frustration. People complained about the number of occasions that they were required to attend court and the lack of continuity in proceedings. People are often forced to tell their story over and over again, because they may be dealing with a different court officer each time.
The ALRC has made a series of proposals, designed to improve case management, making more effective use of judicial time and tailoring procedures to suit individual circumstances. The ALRC endorses a variation of the individual docket system used effectively in the Federal Court, so that a team of judges and registrars (given the high volume of cases) has responsibility from start to finish for an allocated number of cases.
Accountability and transparency
The ALRC’s review has identified a need to build increased accountability and transparency into the federal civil justice system.
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