Open justice, efficient justice and the rule of law: the increasing invisibility of special leave to appeal applications in the High Court of Australia Pam Stewart and Anita Stuhmcke* This article examines the application of the rule of law to special leave to appeal applications (SLAs) in the High Court of Australia. SLAs are a fusion of administrative and judicial power. As an administrative tool, determinations of SLAs are a workload filter, limiting the appeals heard by the Court. As an exercise of judicial power, SLA determinations have significant impact upon the parties to litigation and the development of substantive law. Presenting the findings of data analysis of the determination of SLAs in the High Court of Australia from 2013- 2015, we identify the loss of publicly available information brought about by changes to the High Court Rules in 2016. Using this evidence we argue that the current administration of SLAs preferences efficiency to the detriment of public confidence in the administration of justice. We suggest facilitating the rule of law through publication of the written submissions for SLAs. I INTRODUCTION This article argues for increased transparency in the determination of special leave to appeal applications1 (SLAs) in the High Court of Australia. Referencing the rule of law principles of open justice and efficient justice, we suggest that the current administration of SLAs preferences efficiency to the detriment of public confidence in the administration of justice.2 SLAs are a fusion of administrative and judicial functions. Administratively, the High Court utilises the process of special leave to control its own workload.3 It selects the cases it will hear on appeal in accordance with the public interest test in section 35A Judiciary Act 1903 (Cth). As the grant or refusal of special leave is a ‘virtually unfettered’4 discretion, written reasons are not given and determinations may be made by a panel of any 2 Justices. This is * Pam Stewart is Senior Lecturer in Law, University of Technology Sydney (UTS) and Anita Stuhmcke is Professor of Law University of Technology Sydney. We thank Professor James Brown, ABS Professor of Official Statistics, Dr Adel Rahmani and Dr Tapan Rai, all of UTS for their interest; data scientists Passiona Cottee and Rory Angus for data analysis; Ellen O’Brien for research assistance; and the anonymous reviewers for helpful suggestions. We thank the High Court for cooperation with this study in the provision of electronic data from its annual reports. Any errors are our own. 1 The focus of this article is upon special leave to appeal applications (SLAs) rather than leave to appeal. The latter are rare as such appeals concern judgments of Justices exercising the High Court’s original jurisdiction. 2 Note the difference here between administration and the administration of justice, the former is an administrative function and the latter is a judicial function: Hon Justice Kiefel, ‘Judicial Independence’ (Conference Paper, North Queensland Law Association, 30 May 2008). 3 The number of substantive appeals the Court hears annually is around 80: David O’Brien, Special Leave to Appeal (Supreme Court of Queensland Library, 2nd ed, 2007). This number is confirmed by this study, of the 783 SLAs 80 or 10% were granted and 703 or 90% refused (see Part V). This is not unique to the High Court see Roy B Flemming, Granting Judicial Review in Canada (UBC Press, 2003) for the discussion of the Canadian Supreme Court and 102-104 for a brief overview of other international courts. 4 Hon Ian Callinan, ‘An over-mighty court’ in Upholding the Australian Constitution (Proceedings of the Fourth Conference of the Samuel Griffith Society 1994) 81113. 1 efficient justice. SLAs are also an exercise of Commonwealth Constitutional judicial power. Determinations of special leave affect both the rights of parties and the development of substantive law, allowing the High Court to select and determine which questions of law require judicial consideration. The outcomes of SLAs are disseminated in the High Court Annual Reports, in published Special Leave Dispositions and in the transcripts of SLAs heard orally. Parties’ written submissions for final appeal hearings (though not SLAs) are publicly available on the High Court website. This is open justice. We make the case for increased transparency in the determination of SLAs firstly, by engaging with the rule of law and the open justice jurisprudence of the High Court and secondly, by examining the exceptionalism of SLAs. Tension between efficient justice and open justice, both of which are critical to the rule of law,5 is resolved by the express jurisprudential preference of the High Court for efficiency in determining SLAs. Utilising the results of a data study of High Court SLAs from 2013-2015, we demonstrate the reduction in publicly available information about SLAs as a result of the High Court Rule changes in 2016 governing the filing and determination of SLAs and leave to appeal applications.6 These changes to Part 41 of the High Court Rules 2004 (Cth)7 reflect the practical necessity to control the ever increasing volume of work funnelled to the High Court8 through streamlining procedures and reducing9 oral hearings of SLAs.10 Finally, acknowledging limited Court resources, we suggest enhancing the rule of law through making publicly available all SLA submissions by parties (subject to any Court imposed restrictions), redressing the growing imbalance between efficient justice and open justice. This article makes three important contributions. First, the findings provide empirical evidence of the machinery of the SLA process. It is the first study to collate, synthesize and analyse data to highlight the impact of the 2016 Rule changes with respect to the manner in which applications are managed and determined by the High Court.11 Second, consideration of jurisprudence and literature concerning the rule of law and open justice demonstrates the link between the administrative role of the court and the complexity of the judicial role, 5 Hon Wayne Martin AC, ‘Court Administrators and the Judiciary – Partners in the Delivery of Justice’ (2014) 6(2) International Journal for Court Administration 3. 6 Andrew Phelan, ‘Changes to High Court procedures for considering applications for special leave’, Chief Executive and Principal Registrar of the High Court of Australia, <http://www.hcourt.gov.au/assets/corporate/policies/Special_Leave_Changes.pdf>; High Court Amendment (2016 Measures No. 1) Rules 2016 (Cth); High Court Amendment (2016 Measures No. 2) Rules 2016 (Cth). 7 Subsection 21(1) of the Judiciary Act 1903 (Cth) provides that special leave will be determined subject to the Rules. 8 This necessity is not new, almost 60 years ago Justice McClemens noted that ‘... for purely pragmatic reasons some thought may have to be given in the future to some form of limitation of appeals to the High Court from State courts’, Justice McClemens, ‘Judicial Problems in a Growing State’ (1960) 3 Sydney Law Review 221, 232. 9 A new form (Form 23) now consolidates the draft Notice of Appeal and the Summary of argument/written case into a single form for both leave to appeal and special leave to appeal. 10 High Court Rules 2004 (Cth) r 44.08.2 and the new form (Form 27F) which states the outline of oral submissions. The High Court may now grant leave without an oral hearing see Michael Pelly, ‘High Court decides leave applications on paper’ The Australian, 22 July 2016. 11 This article complements other published findings of this study as to the substance of SLAs, including parties, legal representation, nature of cases, main issues on appeal: Pam Stewart and Anita Stuhmcke, ‘Litigants and Legal Representatives: A Study of Special Leave Applications in the High Court of Australia’ (2019) 41(1) Sydney Law Review 34. 2 whereas previous empirical work using quantitative material alone has been criticised for: measuring performance;12 reflecting upon the quality of the work of justices; or explaining judicial efficiency.13 Instead our analysis supplements qualitative evaluation14 by raising awareness as to the manner the Court undertakes its work. Third, we extend commentary on the adequacy of Court resourcing15 and the need for public confidence and transparency of Court processes16 with respect to the loss of publicly available information through the 2016 Rule changes. We suggest that while the movement towards paper only determinations is not itself problematic, the loss of publicly available information is. In summary, the value of our analysis is to open for scrutiny the type or kind of work the Court is being asked to do through SLAs and the way in which it seeks to manage that work. II THE HIGH COURT OF AUSTRALIA: THE RULE OF LAW, OPEN JUSTICE AND THE OPEN COURT RULE The rule of law, that all members of a society are equally subject to publicly available legal codes and processes,17 is an overarching principle of the Australian democratic system of government.18 The rule of law opposes the exercise of arbitrary power. In Albert Venn Dicey’s oft-cited formulation the rule of law ‘excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government’.19 This exclusion of arbitrary power is both aspirational and formal: aspirational as it is an ideal of justice and formal as the constitutional role of the courts is to hold the Executive to account and to act as a balance against legislative supremacy.20 12 Described as an ‘infant science’ see Hon Murray Gleeson, ‘Current Issues for the Australian Judiciary’ (Conference Paper, 17 January 2000) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_Japanj.htm>. 13 Bathurst CJ, ‘Who Judges the Judges, and how should they be judged?’ (2019 Opening of law term address, 30 January 2019) [45]-[46], [49]-[50].