: Separation of Powers through separation of administration?

Separation of Powers through separation of administration?

Kathy Laster

The Liberal/National Coalition government in Victoria is well on the way to radically restructuring the governance of Victoria’s courts and tribunals. A new Courts Executive Service (‘CES’), independent of departmental or political control, will provide executive leadership and administrative support to all Victorian courts as well as to the Victorian Civil and Administrative Tribunal (‘VCAT’). The staff and resources currently managed through the Courts Division of the Department of Justice will be transferred to an independent body, directly under the control of the judiciary. The details of this new court governance model have yet to be settled, but it is clear that the CES will be a bold experiment which will test the impact of self-governance on the operation and standing of courts and tribunals.

The Victorian Attorney-General, Robert Clark, justifies the new model on two ideological grounds. First his faith is in economic theory that holds that greater devolution of power from the centre to the local leads to greater efficiency. More significantly for the legal sector, the proposal is heralded as a tangible demonstration of this government’s commitment to the Separation of Powers doctrine. The appeal of legal ideology is strong for this Attorney. He has, for example, also taken steps to give the Parliament greater control over the Executive through the establishment of a Parliamentary joint standing committee to monitor and review the work of the Ombudsman, Privacy Commissioner, Commissioner for Law Enforcement Data Security and the proposed new Freedom of Information Commissioner. But the creation of a separate Courts Executive Service is by far the most comprehensive and costly of the new Attorney’s concessions to the Westminster principles of the independence and accountability of each of the three branches of government.

Greater autonomy in the governance and management of the courts has been a consistent demand of the Victorian judiciary. For example, in the Courts Strategic Directions Statement (2004), the courts and VCAT argued that the Executive branch’s control over the policies, resourcing, administration and staff of the Courts and VCAT undermines both the reality and the appearance of the independence of courts and tribunals and of judicial officers.

The Commonwealth courts have all been self-governing under their respective Chief Justices since the 1990s, partly because the then Attorney-General believed that a devolved model would provide greater incentives for court efficiency. Similar managerialist perspectives inform the authors of the Australian Institute of Judicial Administration (‘AIJA’) monograph, The Governance of Australia’s Courts (2004) which concluded that ‘aligning authority with responsibility’ would simultaneously serve both justice and efficiency objectives.

The South Australian Judicial Council, introduced under the Courts Administration Act 1993 (SA), has allowed the heads of jurisdiction (with the Chief Justice preserving a right of veto) to take charge of the policy setting and management of court services. The Judicial Council, through its executive agency, ‘the South Australian Courts Administration Authority’ now provides all administrative, financial and managerial support functions to the courts, having taken over these functions from the executive department.

But despite the one-line budget allocation from the Attorney-General to the courts via the Judicial Council, and very light oversight through annual and ad hoc reporting requirements, to date, the South Australian courts have not proven themselves to be more efficient than other jurisdictions with more traditional governance arrangements.

The proposed Victorian model though, apart from being a much bigger enterprise because of the scale and complexity of the jurisdiction, will also enjoy greater autonomy. A new and separate IT system as well as other expensive infrastructure will be developed by the CES to meet its own needs. The final complexion of the Victorian model is yet to be determined, but if the funding for the courts and tribunals comes directly via parliamentary appropriation (rather than through the Minister as in SA), the Victorian CES will enjoy even greater political independence than its South Australian counterpart.

As any public administrator will readily attest, there are extra costs in preserving a robust system of democratic government. The current Attorney-General is clearly prepared to pay, at least initially, a higher price for, and to actively defend, the right of the courts to self-governance. It remains to be seen, however, whether other Ministers in this or successive governments will share this view. There is a real danger that once removed from the direct purview and sphere of influence of a Ministerial portfolio the courts might struggle for resources and be forced to fight in the competitive milieu of the annual budget bidding process. This is particularly problematic for them if the costs of justice go up rather than down under the new model.

At the very least, the paradoxical effect of giving greater autonomy to the courts will be that senior members of the judiciary will need to become much more skilled in the political and administrative realms. They will also be far more dependent than hitherto on their own highly skilled professional staff to ensure that the courts can meet demanding managerial objectives including significant economies of scale. Raising the administrative capacity of court staff is a vital but largely hidden additional cost of this new development. Related to this, to truly realise efficiencies, the various levels of the court hierarchy will need to work together much more closely and probably sacrifice their current distinct identity and relative autonomy from one another. These are just some of the governance challenges for the leadership of our courts during this period of dramatic change in every aspect of their organisation and work.

KATHY LASTER teaches law at Monash University.

(2011) 36(2) AltLJ 135
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