Review of the federal civil justice system

The Australian Law Reform Commission’s review of the federal civil justice system was instigated in November 1995 after concerns that Australian legal proceedings were becoming excessively adversarial and that this was having a damaging effect on the delivery of justice.

Managing justice: A review of the federal civil justice system (ALRC Report 89) represents the culmination of a major four year inquiry, which commenced with terms of reference directing the Commission to consider ‘the need for a simpler, cheaper and more accessible legal system’.

The ALRC inquiry focused on practice, procedure and case management in federal civil courts and tribunals, such as the Federal Court of Australia, Family Court of Australia and Administrative Appeals Tribunal (AAT), as well as on issues such as costs, delay, legal ethics, legal and judicial education, judicial accountability, alternative dispute resolution, legal aid and expert witnesses.

The final report ALRC 89 contains 138 recommendations, covering a wide range of issues and current problems, aimed at the variety of participants and institutions which influence the general quality, and the particular practices and procedures, of the federal civil justice system.

The Commission’s call for a collaborative and holistic approach to tackling civil justice reform is directed to the federal government and government departments and agencies, parliamentary committees, the federal courts and tribunals, the legal profession, legal aid commissions, educational institutions, and others.

Key recommendations

• Case management procedures in the Federal Court, particularly in regard to class actions and native title matters, should be fine-tuned.
• The Family Court should adopt a more flexible and responsive approach to case management, which tailors procedures to suit individual cases, and ensures consistent oversight of matters through to resolution or trial.
• A range of measures to speed up the resolution of cases in federal review tribunals, make tribunal processes more transparent, and enhance education and training opportunities for tribunal members.
• There should be greater certainty about the costs of litigation, including requiring full disclosure of lawyers’ fees and shifting to a more rational, events-based scale for calculating legal fees.
• Legal professional associations and regulatory bodies should give priority to the development and implementation of national rules governing legal ethics and professional responsibility.
• Codes of practice should be developed for expert witnesses, especially in family and administrative review proceedings, drawing upon Federal Court guidelines – and emphasising an expert’s primary duty is to the court or tribunal, not to the client.
• Each federal court and tribunal should develop protocols for handling complaints against judges, judicial officers and tribunal members, as well as complaints about systems and processes. The federal Parliament should develop a protocol to ensure smooth transfer and handling of the rare complaints against federal judicial officers of sufficient seriousness and substance to merit consideration of whether to remove the judge from office.
• Two new institutions should be established: an Australian Academy of Law dedicated to promoting high standards of learning and conduct across the legal profession; and an Australian Judicial College to meet the education and training needs of judges and judicial officers.