Transforming Court Governance in Victoria
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TRANSFORMING COURT GOVERNANCE IN VICTORIA Tin Bunjevac, BA, LLB, GCTE, barrister at the Victorian Bar and lecturer at Victoria University College of Law and Justice Victoria University Submitted in fulfillment of the requirements of the degree of Doctor of Philosophy by publication. February 2017 ABSTRACT This thesis by publication analyses the emergence of independent judicial councils and their role in facilitating judicial control of court administration in Australia, Canada, Ireland, the Netherlands, Sweden, the UK, the USA and other countries. While much research has been conducted into the relative merits of judicial control of court administration, the thesis extends the court governance literature by developing an analytical policy framework for a model Judicial Council of Victoria with broad statutory responsibility for improving the quality of justice in the court system. The thesis then applies the proposed analytical model to assess the legal and institutional framework of Court Services Victoria (‘CSV’), which was established in 2014 in order to transfer the responsibility for court administration from the executive government to the judiciary. The thesis argues that an independent judicial council, such as CSV, requires a strong developmental mandate to assist the courts improve their operations and respond to a multitude of internal and external challenges that they inherited from the executive system of court administration. At the level of the courts, the framework envisages the establishment of a compact management board, comprising executive judges and the court CEO, which is modelled upon a corporate board of executive directors, with full responsibility for court administration. Overall, the thesis contends that greater internal transparency and administrative ‘corporatisation’ of the judiciary is essential at all levels of the judicial organisation 1 in order to improve court performance, enhance the social legitimacy of the courts and reinforce judicial independence. Contributions of each journal article The first article undertakes a detailed comparative analysis of key international models of court administration and proposes the establishment of an independent ‘Judicial Council of Victoria’ with specific institutional powers, composition and competencies vis-a-vis the courts and the executive government. The second article refines the proposed judicial council model, by incorporating certain governance features from northern European judicial councils, in areas such as the governing board design, organisational transparency and ministerial powers. The third article concentrates on the proposal to establish an executive board of judges in each court with full responsibility for court administration. The article argues that the duties, tasks and powers of the executive judges and the board itself should be clearly specified in the legislation and court rules. The final article provides the answer to the principal research question of the thesis, which is to determine whether the legislative and institutional framework of CSV in Victoria meets the proposed model policy benchmarks for an independent judicial council that is effective, relevant and accountable. Key findings The thesis concludes that the Victorian court system reform broadly meets the identified policy benchmarks, but that the legislation is insufficiently clear in important aspects, requiring a set of specific amendments. In particular, the legislation should specify that CSV has a mandate to improve the quality of justice in the courts and clarify CSV’s powers in court administration. Similarly, the functions and powers of judicial executives in courts should be clearly defined in the courts legislation. 2 To Julia and Jamie; И мојим родитељима, Весни и Бори. 3 STUDENT DECLARATION I, Tin Bunjevac, declare that the PhD thesis by publication entitled Transforming Court Governance in Victoria is no more than 100,000 words in length including quotes and exclusive of tables, figures, appendices, bibliography, references and footnotes. This thesis contains no material that has been submitted previously, in whole or in part, for the award of any other academic degree or diploma. Except where otherwise indicated, this thesis is my own work. Signature: Date: 3/2/17 DETAILS OF INCLUDED PAPERS: THESIS BY PUBLICATION Publication Title and Chapter No. Paper Title Status Details (2011) 20 Journal of Judicial Administration Court Governance: The 3 Published 201. Challenge of Change Double blind peer- reviewed journal. (2011) 4(1) International Court Governance in Journal for Court 4 Context: Beyond Published Administration 35. Independence Double blind peer- reviewed journal. The Corporate (2016) 25(4) Journal of Transformation of the Judicial Administration 5 Courts: Towards A Published 197. Judicial Board of Double blind peer- Executive Directors reviewed journal. Court Services Victoria (2015) 41(2) Monash and the New Politics of University Law Review Judicial Independence: 6 Published 299. A Critical Analysis of the Court Services Double blind peer- Victoria Act 2014 (Vic) reviewed journal. From Individual Judge UNSW Law Journal. to Judicial Bureaucracy: Double blind peer- The Emergence of Accepted 2/Appendix reviewed journal. Judicial Councils and for A Publication of the the Changing Nature of publication literature review chapter Judicial Accountability was not a requirement for in Court Administration the thesis. Declaration by Tin Bunjevac: Signature: Date: 3/2/17 TABLE OF CONTENTS ABSTRACT ............................................................................................................I 1 INTRODUCTION.............................................................................................11 1.1 CASE STUDY: TRANSFORMATION OF COURT GOVERNANCE IN VICTORIA .......14 1.2 KEY RESEARCH QUESTIONS AND CONTRIBUTIONS TO KNOWLEDGE ...............15 1.3 OUTLINE OF THE THESIS ................................................................................17 1.4 RESEARCH METHODOLOGY............................................................................18 2 LITERATURE REVIEW.................................................................................23 2.1 ARGUMENTS IN FAVOUR OF JUDICIAL CONTROL OF COURT ADMINISTRATION24 2.2 PROBLEMS ASSOCIATED WITH JUDICIAL CONTROL OF COURT ADMINISTRATION ............................................................................................................................31 2.3 POLICY CHALLENGE 1: DEVELOPING AN EFFECTIVE SYSTEM OF JUDICIAL ADMINISTRATIVE ACCOUNTABILITY ....................................................................33 2.3.1 Reconceptualising judicial accountability and independence in court administration ................................................................................................35 2.3.2 Administrative accountability and court performance .........................38 2.3.3 From ‘organisations of professionals’ to ‘professional organisations’ ........................................................................................................................40 2.3.4 Towards a ‘new elaboration’ of judicial administrative accountability ........................................................................................................................42 2.4 POLICY CHALLENGE 2: ESTABLISHING A JUDICIAL COUNCIL THAT IS ACCOUNTABLE, RESPONSIVE AND EFFECTIVE ......................................................43 2.4.1 What should be the aims and competencies of the judicial council?....44 2.4.2 Who should be represented on the council? .........................................47 2.4.3 What function(s) should the judicial council perform in court administration and how should the courts be organised internally? ............50 2.4.4 What function(s) should the Minister perform in the new institutional framework? ....................................................................................................55 6 2.4.5 What mechanisms can be introduced to promote transparent and accountable relationships with the executive government and stakeholders? ........................................................................................................................61 2.5 SUMMARY OF THE MAIN RESEARCH QUESTIONS ............................................70 3 THE CHALLENGE OF CHANGE.................................................................71 3.1 INTEGRATED MANAGEMENT IN THE COURTS ................................................72 3.2 JUDICIAL COUNCIL WITH RESPONSIBILITY FOR IMPROVING THE QUALITY OF JUSTICE................................................................................................................73 3.3 OPERATING AT ARMS’ LENGTH FROM THE MINISTER.....................................74 3.4 SEPARATION OF MANAGEMENT FROM OWNERSHIP ON THE COUNCIL .............75 3.5 BOARD OF EXECUTIVE JUDGES IN THE COURTS ..............................................75 3.6 MINISTER’S RESERVE POWERS IN COURT ADMINISTRATION...........................76 3.7 JUDICIAL COLLEGE OF VICTORIA ..................................................................77 4 BEYOND INDEPENDENCE ........................................................................102 4.1 NORTHERN EUROPEAN JUDICIAL COUNCILS AND THE SWEDISH MODEL OF PUBLIC ADMINISTRATION ..................................................................................103 4.2 BENEFITS OF THE NORTHERN EUROPEAN MODEL.........................................105 4.3 KEY GOVERNANCE FEATURES OF THE