THE CONFERENCE – 40 YEARS ON

Presented by
the Hon Justice JA Dowsett, Federal Court of Australia

at the

Supreme and Federal Courts Judges’ Conference
Melbourne – 21-25 January 2012

INTRODUCTION

My only qualification for giving this paper is that, from the late 1980s until 1997, I represented the Queensland Supreme Court on the steering committee and organized one conference in Brisbane.  For the one day bonding activity I took about 100 judges plus accompanying persons to a place called O’Reilly’s in the rain forest on the New South Wales border.  It rained.  The then chair, Ian Sheppard, asked me what I had expected to happen in a rain forest.  It was the last wet summer in Brisbane until quite recently.  Nonetheless people seemed to enjoy themselves.  

My purpose today is to share with you some of the available history of this conference.  However I do not want to engage in reminiscence and anecdote, or at least not exclusively.  The history of an institution is only as valuable as is the institution itself.  In my view this conference has been, and is, a very important element of the Australian judiciary – our national judiciary.  It has been instrumental in shaping that national judiciary.  If we understand how it has done so in the past, we may be better able to utilize its potential to do so in the future.  I shall return to this theme at a later stage.

In preparing this paper, I sought the assistance of the various chief justices, asking for court files and information as to attendance at these conferences, funding and levels of judicial support.  Although I received substantial responses to these enquiries, there was little that was not obvious.  To some extent I felt that I had wasted the time of busy people.  However the responses demonstrated judicial commitment to the conference and appreciation of its value.  The Supreme Court of Tasmania provided a treasure trove of material.  Bruce Lander and the librarian in the South Australian District Registry of the Federal Court also provided valuable material, as did the Queensland Supreme Court Library and Debra Mullins of that Court.  Other courts produced material which was relevant but generally replicated some of the material derived from the named sources.  In particular, I obtained minutes of the first meeting of the steering committee and associated correspondence.  I also obtained a short history of the conference, written by the first chairman, Russell Fox, in 1990.  The document seems to have been reprinted in 2006, presumably for distribution at a conference.  

I have also had access to an address by the late Dame Roma Mitchell as Governor of South Australia, opening the conference in Adelaide in 1995.  Some of us were present on that occasion.  As another founder of the conference, she confirmed Russell Fox’s history of events.  I sent a draft of my paper to him, to Sir Guy Green and to Ian Sheppard, all of whom have chaired the steering committee.  Some of their comments have been incorporated into the paper in its present form.  Much of what I say concerning the early years of the conference comes from these sources and from comments by Ian Sheppard when he was chairman. 

I propose to discuss the decision to hold the first conference, pausing to say a little about the extent to which decisions and practices adopted in the early days have continued to affect the way in which the conference has since been conducted.  I shall then say something about my experiences on the steering committee and at conferences.  I shall address one example of press coverage of the conference, and then outline the major achievements of the conference as I see them.  Finally, I shall say something about the future.

THE IDEA, THE STEERING COMMITTEE AND THE FIRST CONFERENCE

As to the establishment of the conference, Russell Fox’s paper sets out the circumstances in detail.  To some extent, it reflects the charm of an earlier era.  I can do no better than quote verbatim from it:

Having been persuaded, in connection with another body active in legal matters with which I had an early association, that a record of its beginnings is of importance and of interest to many, I tender some factual material about the birth and first years of the Conference.  I observe in passing that the use of an abstract noun to describe it points to what is probably a most important part of its success, namely the lack of formal structuring.  It is a voluntary organization without a constitution.  Guided by practice and precedent, its progress is in the hands of those who attend its annual meetings.

In what follows I cannot sensibly avoid the use of the first person singular, but I hope that I will be acquitted of any charge of egotism or, at least, excessive egotism.  The idea that our Judges might meet together at regular intervals to discuss matters arising in practice or affecting their judicial activities came to me in 1970, after I had attended a seminar in Honolulu conducted jointly by the Hawaiian judiciary and Judges from the west coast of the United States.  I was despatched thence by the Federal Government.  Reynolds JA, from New South Wales, was the other Australian present.  As I recall, the seminar dealt mostly with the rules of evidence and was practical to the point of giving us tests – “I object!”, “I move to strike!”.  It was very well-conducted, and Reynolds and I, with others, enjoyed the hospitality of the Chief Justice of Hawaii (Richardson CJ).

Having pondered on the possibility for a time, my opportunity to raise the matter to a captive audience came when the Churchill Foundation held its next national Fellowship Committee meeting in Canberra.  On the Fellowship Committee were a number of Judges, representative of their respective States and Territories, with Burbury CJ of Tasmania as Chairman.  Initially, I canvassed the possibility of a scheme which had more or less crystallized in my mind with a group comprising, as best I can recall, Jackson CJ, Chief Justice of Western Australia, Mitchell J, of South Australia and W. Campbell J, of the Queensland Supreme Court.  Their reaction was immediate and enthusiastic.  Burbury CJ, was not at first part of the group, but within half an hour or so we found ourselves on a street corner in his company (I have a clear visual recollection of the scene).  Fearing I might thereafter lose him, I briefly (very briefly) propounded the suggestion, and he too thought it a good idea.  I remember that he immediately proposed Neasey J as the Tasmanian representative on the necessary organising committee (or ‘steering’ committee as it [came] to be called).  Jackson CJ suggested, at an early stage, that Wickham J could be an alternate for him, and the latter soon became the Western Australian representative.

So it was that committee members arranged to correspond, and to meet.  Meares J, from New South Wales, and Kerr J, from the Australian Industrial Court (he was also an ‘additional judge’ of the A.C.T. Supreme Court) agreed to join the Committee.  By correspondence, and phone calls, we sorted out some matters and refined the concept.  The conference now proceeds closely along the lines then planned for it.

Russell Fox was, in the early 1970s, the Senior Judge of the ACT Supreme Court.  He was to become Chief Judge of that Court, as well as Chief Justice of Norfolk Island and one of the first three judges of the Federal Court.  Sir Stanley Burbury was to become Governor of Tasmania.  He was the first of a number of Tasmanian Chief Justices who were appointed as Governor of that State after close association with the conference.  As I have said, Roma Mitchell was to become Governor of South Australia.  Wally Campbell became Chief Justice, and then Governor of Queensland.  John Kerr, of course, became Chief Justice of New South Wales and then, Governor General.  

The first meeting of the steering committee was held on 27 March 1971 at the home of Meares J of the New South Wales Supreme Court.  All of the state Supreme Courts except Victoria were represented, as were the ACT Supreme Court and the Papua New Guinea Court.  The somewhat anarchic characteristic which has marked the conference ever since its foundation, as mentioned by Fox, was presaged in the first resolution of the meeting.  Those present resolved that there was no need to elect a chairman.  According to the minutes, the absence of a Victorian delegate was explained, although the explanation is not recorded.  My understanding is that there was an institutional objection to judicial conferences.  Nonetheless, Victorian judges were to be kept informed of progress.

The meeting identified two goals which were not necessarily related. The first was to conduct an “occasion” for discussion of topics of interest to Supreme Court judges.  The second was the establishment of a “permanent organization which might organize on a long term basis various activities of interest to judges in relation to their work”.  The meeting concluded that there should be a conference to facilitate the achievement of both goals.  Only “modest” steps were to be taken towards either goal.  Salaries should not be discussed.  You will note that the “occasional” conferences were for Supreme Court judges only.  The Federal Court had not then been established.  The proposed permanent organization was to have a wider constituency.

This dichotomy of purpose was to continue for many years.  Well into the 1990s, there was no assumption that the conference would be held from year to year.  Those attending each conference were asked to indicate whether a conference should be held in the following year.  There was, from time to time, debate about that question.  There seems to have been little or no further debate about the “permanent organization” until the early 1990s.  Nonetheless the original dichotomy of purpose affected the way in which the conference was conducted, the composition of the groups which attended and the subjects addressed.  In particular, there was general acceptance of the proposition that the conference had no representative function, leading to the result that controversial matters were not generally discussed.  Apart from one non-legal topic at each conference, subject matter generally concerned either substantive law or court craft and procedure.  One exception was a proposal to abolish the Victorian Accident Compensation Tribunal and the effective loss by some of its members of their judicial status.  This was in 1992 and 1993, prior to the establishment of the Judicial Conference of Australia.  As I recall, the Victorian judges had, for some time, been concerned about the transfer of jurisdiction from courts to other bodies.  We were also reluctant to invite judges from emerging south-east Asian and Pacific nations where there was any doubt about the independence of the judiciary in the countries in question.  

Returning to the first conference, the steering committee resolved that it should be held in Canberra in January 1972, and that New Zealand and PNG Judges should be invited to attend.  The venue was later changed to Sydney.  The conference was to be confined to Supreme Court judges (specifically including chief justices) and judges of the Commonwealth Industrial Court.  The conference was to decide whether High Court and District Court judges should be invited to be members of the proposed permanent organization.  Whilst it might organize activities for magistrates, they were not to be members of it. Academics might be invited to be associated with the organization, but not members.  The organization might be called “The Australian Judicial Institute”.  Chief justices and attorneys general were to be advised of these decisions.  Government financial assistance was at least contemplated.  It was hoped that the Chief Justices’ Conference would support the proposal. Those attending the meeting agreed to donate $10 each for petty cash.

The proposed conference became public knowledge, presumably because the committee members decided that it should.  In volume 45 of the Australian Law Journal at 651, the proposed “summer judicial conference” was announced as follows:

History will be made when, for the first time, Supreme Court Judges from the States and Territories of Australia meet in conference at the University of New South Wales (from 25th to 27th January 1972) to discuss matters of common legal interest.  That over forty Judges have so far stated that they will be attending demonstrates the interest which the occasion has generated.  The central theme selected for the conference is “The Trial”, and the programme has accordingly been designed to deal in a practical way with problems which arise in the course of trying cases, civil and criminal.  There are to be five working sessions, and two social events-a luncheon on the first day, before work commences, and a cocktail party on the last day, when work is done.  Sir Leslie Herron, Chief Justice of New South Wales, is to be chairman of the first session, at which a paper, Fact Finding, will be delivered by Sir Harry Gibbs.  In the final session, which will be under the chairmanship of Sir Stanley Burbury, Chief Justice of Tasmania, there will be an opportunity for the Judges to decide what the future pattern of these conferences should be and to establish an organisation to arrange them.

The holding of this conference shows Australia to be following, and not too belatedly, trends in both the United Kingdom and the United States.  

A discussion of developments in the UK and the USA followed.  The article then continued:

The case for an Australia-wide judicial conference therefore needs no argument.  Some may believe that judges already have adequate opportunity for informal discussion with their brothers about the problems that arise in the course of judicial work.  But these discussions are haphazard and not preceded by any planned or disciplined study or thought such as can take place at a properly organized seminar.  It is also sometimes suggested that judges from different courts and from different States have the opportunity to meet informally and exchange experiences at Australian Law Conventions.  But these Conventions are organized primarily for other purposes and rarely, if ever, deal in any detailed way with the problems of judicial work or its administration.  What is now being considered is the provision of an opportunity for Australian judges to meet for exchange of information, experience and ideas after some planned work has been done to that end.  It is, if we may say so, a development much to be applauded.

This journalistic support is to be contrasted with subsequent journalistic hostility to which I shall later refer.  As to the social programme, Roma Mitchell said, in her address, that initially, there was to be none, maintaining the image of judicial sobriety and restraint.  However John Kerr prevailed on the Attorney General of New South Wales to host a function and, despite earlier good intentions, judges and wives attended.  As Dame Roma pointed out, in those days there were only wives.  As to avoiding social programmes, it has all been downhill since then.  

According to Fox, from about 1974, the Victorian judges attended but, for many years, in small numbers.  He recorded strong support from Queensland and South Australia.  

Events at the first conference are recorded in a summary, presumably prepared by Fox.  Apart from the forty-six Australian judges, one New Zealand judge and three judges from Papua New Guinea attended.  The High Court judges were invited, as was Sir Frank Kitto who had recently retired.  At some time during the conference each of Sir Garfield Barwick, Sir Frank Kitto, Sir Victor Windeyer, Sir Cyril Walsh and Sir Harry Gibbs attended.  Somewhat mischievously, in his history, Fox said of Barwick’s attendance at either the 1972 or 1973 conference:

What I do remember, however, is that he came at cocktail hour … and with accustomed cheerfulness.  I see him now, leaning over the table, on which was an extensive spread, to reach towards a large plate of succulent prawns.

The practice of inviting High Court judges has continued.  

I shall conclude this part of the paper by citing a passage from Sir Guy Green’s opening remarks as Lieutenant Governor and Chief Justice of Tasmania at the 1993 conference in Hobart.  Sir Guy said:

This conference has now been held annually for over 20 years and it is interesting and perhaps instructive to look back at the way it has developed over that time.

Initially the conference was regarded very warily by the judges of at least one Supreme Court who were concerned that it might turn out to be a sort of judges’ trade union or might assume a role which would interfere with their capacity to freely develop their own policies or even interfere with their independence.  Indeed I can remember that at the first conference I attended which was in 1974 although a judge from that court did attend he was at great pains to ensure that everyone understood that he was not present as a participant but merely as an observer although I also recall that his assumption of that role did not have the effect of inhibiting him from speaking on more topics and at greater length than anyone else at the conference.  But those initial concerns about the conference soon evaporated and as you know since then this conference has enjoyed the full support of all the superior courts in Australia.

One significant development in the organisation of the conference related to its venue.  The first conferences were held in Canberra or Sydney and there was some resistance to the proposal that it should be held anywhere else.  Each time a more remote venue was proposed the same sort of objections were raised.  Hobart was too far away and too wet, Perth was too far away and too hot and Darwin was too far away and too everything. Well in fact as you know successful well attended conferences were eventually held in all those places and I don’t think anyone worried at all about the distance, the weather or anything else.  Since then this conference has become well established as an itinerant conference so much so that this is the third occasion upon which it has been held in Hobart and on one occasion an excellent conference was held as far afield as New Zealand.

Other important milestones in the history of the conference have included the adoption of the practice of inviting at least one outside speaker to address the conference, the discussions which contributed to the establishment of the A.I.J.A. and most contentious and serious of all the great debates which were had about the burning issue of whether a black tie should be worn at the conference dinner.  Now at this conference another milestone will be reached when you will be discussing whether you should be taking the very significant step of establishing some kind of national organisation of judges.

THE STEERING COMMITTEE IN THE 1980s AND 1990s

In the late 1980s, I succeeded Peter Connolly as the Queensland Supreme Court representative on the steering committee.  Peter had, I think, succeeded Sir Walter Campbell who, as we have seen, was there from the beginning.  He had gone to Government House by the time I was appointed to the court and regrettably, I never really discussed the conference with either him or Peter.  I received no records relating to previous conferences.  I suspect that the anarchy to which I have previously referred, and judicial concern about institutionalizing anything concerned with the judiciary, had led to a healthy suspicion of keeping records.  Each conference was separate and was not to be taken as evidence of the existence of any permanent governing institution or association.  I adopted a similar approach as, I suspect, did my colleagues.  

When I joined the committee it met twice a year, once in April to receive a report concerning the previous conference and to plan the next conference, and once during each conference, to deal with emerging issues.  The state of court financing in those days was evidenced by the fact that in order that I attend the April meetings, the Chief Justice had to write to the Attorney General, requesting special funding.  The same procedure was followed in order to obtain funds for attendance by judges at the conference itself.  Steering committee meetings were, at first, held at the Supreme Court in Melbourne, Melbourne being thought to be more convenient than Sydney for the Tasmanian and South Australian delegates.  At some stage we moved to Sydney where we met in the old Chief Justice’s chambers and had lunch in the garden.  As a junior judge, I was quite taken by the privilege of being in such a beautiful and historic setting.  The Sydney venue was further enhanced by the hospitality of the New South Wales representative, Ken Carruthers and his wife Beverly.  They raised beef cattle and provided substantial lunches from their herd.

For most of my time on the steering committee, Ian Sheppard was chairman.  He had great knowledge of the history of the conference, having attended from a very early stage.  He regularly referred to decisions which had been made when Fox was chairman or during the time of his successor, Sir Guy Green, Chief Justice, and then Governor of Tasmania.  Sir Guy says that Sir Richard Blackburn of the ACT Supreme Court succeeded Fox and that he, Green, succeeded Blackburn.  Fox thinks that he never formally resigned, and that Sheppard gradually took over administrative responsibility.  Two other members of the committee during my time became Chief Justice of Tasmania and then Governor, Bill Cox and Peter Underwood.

After he left the steering committee, Sir Guy continued his close association with the conference.  The other Chief Justice who, at that time, had a particular interest was Len King of South Australia.  Ian Sheppard obviously had great respect for both.  Decisions concerning the conference were often informed by their points of view.  Ian was a defender of the minimalist approach to the conference which had been taken since its inception.  He was also acutely aware of the need to engage the chief justices, including his own, if the conference were to survive, let alone prosper.

During his time as chairman, we took the courageous decision to conduct the 1991 conference in New Zealand, the first of three which have been held in that country.  The decision was courageous because of the cost involved and uncertainty as to how far governments would go in funding attendance.  Even in the relatively well-funded Federal Court of that day, Ian expected difficulty.  He decided to try to convince his colleagues that they should travel business class rather than first class, which was then, as now, the entitlement of Federal Court judges.  Perhaps surprisingly, he was successful, leading to a generally more flexible approach to that question in the Court, which approach has endured.

The New Zealand venture was successful, but two co-incidental events dominate my recollection of it.  The first Gulf War, sometimes called the “Golf War”, broke out whilst we were travelling to New Zealand and was therefore prominent in the news and people’s thoughts. The other event was a large storm which hit Sydney on the first day of the conference, causing a tree to fall on Ian Sheppard’s house, so that he and Joan had to go home before the conference had really started.

A later conference in Hobart was dominated by the “rougher than usual handling” case which had been publicized shortly before the conference started.  The Judge involved, Derek Bollen of the South Australian Supreme Court, was also a member of the steering committee.  The conference was marked by demonstrations outside the hotel, calling for Derek’s head.  In the end, however, the demonstrators merely asked that they be allowed to present him with a suitably inscribed T-shirt which he graciously accepted.  In connection with the same matter, a senior Federal Court judge asked to speak to the steering committee and did so in a highly emotional way, at breakfast, urging us to speak out formally against violence towards women.  Perhaps we should have done so, but we were, at that time, very much influenced by the long-held view that the conference did not represent judges, and nor did the steering committee.

I greatly enjoyed my time on the steering committee.  The other courts seemed to appoint representatives who were both good company and able lawyers.  I have mentioned many of them.  Other names which spring to mind are Clive Tadgell from Victoria, Geoff Kennedy from Western Australia and David Angel from the Northern Territory.  I should also mention John Doyle who, as you know, succeeded Len King as Chief Justice of South Australia.  John was not on the steering committee but he became very influential by dint of writing to us after each conference, urging us to increase the number of working sessions.  We felt that we had the balance right but, as I have said, Ian Sheppard understood the need to keep chief justices on side.  I cannot now recall how we resolved this challenge, but we must have done so successfully.  John continues to be a great supporter of the conference, the South Australian judges still come, and other Judges don’t seem to have been deterred by the workload.

Finally, I note that one feature of the conference has disappeared – the delivery of reports.  The Chief Justice of the High Court used regularly to report on the activities of the Council of Chief Justices or its predecessor, the Chief Justices Conference.  Alternatively, he would arrange for another Chief Justice to do so.  Reports were also received from the AIJA and the JCA.  The appropriateness of this practice will appear when I discuss the achievements of this conference over the years.  

THE PRESS 

We are all familiar with the ways in which parts of the press fill their columns and, perhaps, enhance their readership by attacking the judiciary and other so-called “tall poppies”.  We all recall the campaigns arising out of the conferences in Florence and Paris.  I want to describe a campaign in The Australian in December 2004 in advance of the 2005 conference in Darwin.  However I do not wish to be seen as participating in the currently popular sport of “Australian-bashing”.  Let me tell you how events unfolded.

On 2 December 2004 The Australian ran a number of associated stories concerning judicial leave, limited court sitting time in December-January, judicial salaries, conferences, including the forthcoming Darwin conference and, for good measure, Jeff Shaw’s attendance at conferences.  He was described as the “alleged drink-drive judge”.  What was a reader to make of this smorgasbord of criticism?  How were the various disparate themes to be understood and assessed?

The answer can only be that there was no intention that readers develop informed understandings of the issues.  The intention must have been to create a generally negative view of the judiciary as a whole.  However our present interest is in the treatment of the Darwin conference and this conference as an annual event.  The relevant article began as follows:

Top of the judicial agenda during the legal go-slow over January is a restorative retreat in the five-star Crowne Plaza resort in Darwin.

At least 40 Federal and Supreme Court Judges will convene in the hotel’s “relaxed tropical garden setting” to discuss such topics as “Balancing Judicial Life” during the taxpayer-funded shindig.

The meeting is one of an array of conferences hosted in foreign and domestic destinations on offer throughout the year – but about which Australia’s top judges remain secretive.

For some years prior to 2004, judicial health had been a significant issue. It has continued to be an issue and is an important topic addressed at the National Judicial Orientation Programme.  It is difficult to understand why it was thought to be a subject worthy of ridicule.  Further, the suggestion that it was typical of the topics to be discussed was simply wrong. The suggestion of unbridled, sybaritic self-indulgence was also absurd.  However attractive Darwin may be at some times during the year, nobody would suggest that January is a good time to visit.  Indeed, in my time on the steering committee, it was accepted that Darwin would attract smaller numbers than would other centres.  The anticipated attendance of “at least 40” suggests as much.  The suggestion that Judges were “secretive” about conferences is also difficult to understand.  The press had, for some years, been using freedom of information legislation to find out about such expenditure.

There was then a reference to the privately conducted Cortina conferences (which I confess to having once attended).  It was said that Stephen Charles was to speak at a forthcoming conference in Cortina, and that it would be a “lavish bash”.  There was a clear implication that his attendance was government-funded, which may or may not have been true. One might have thought that the fact that a judge of such standing was giving a paper would go some way towards establishing the credibility of the conference, but the journalists seem to have thought that the fact that the conference was in Cortina was a basis for deriding those who were to participate.

The authors of the article then returned to the Darwin conference, commenting on numbers attending from the various courts and reporting that the Federal Court’s press officer had unfortunately said something to the effect that recent press attention had led to Federal Court Judges being on a “short leash” and aware of such attention.

The article concluded with a summary of Jeff Shaw’s activities.  In his two years on the bench he had attended the orientation programme, the JCA Colloquium, also in Darwin, and this conference in Auckland, all no doubt enjoyable, but hardly surprising in a two year period.  It was then reported that after his car crash, he had a “two week wandering Sino-Australian judicial tour of China”, but, “according to the court at his own expense”.  What was the relevance of two weeks’ travel at his own expense?  Why the reluctance to accept the court’s assertion to that effect?  Indeed, why was Shaw mentioned at all other than to use his unfortunate position unfairly to denigrate the judiciary and this conference?    

On 3 December 2004, The Australian editorial was headed “Judges must justify summer of nick-off”.  Within the editorial, there were references to judicial efficiency, accountability, allegedly restrictive work practices at the bar, the long vacation and this strange assertion:

If it needed any prodding, the public’s cynicism has been heightened by the exposure of the cavalier attitude within parts of the Bar to lodging tax returns.  In line with its guild traditions, both the judiciary and the Bar have not been noted for disciplining poor performance or for pursuing efficiency with the same vigour that applies to most of the rest of the workforce.  As a guild, the very notions of managerial efficiency – including an organisation hierarchy with bosses who give instructions that others must follow – is alien to the culture of collective and individual “independence”.  The flow-on of this has been the upheavals in the magistrates courts of Victoria, Queensland and now South Australia.  Yet, anyone who publicly queries the performance of individual judicial officers exposes themselves to damages, awarded by other judicial officers, of hundreds of thousands of dollars.  That’s no way to promote public confidence in the judicial system.

My understanding is that from at least the mid-1980s, effective and efficient judicial administration had been a dominant consideration in all courts.  Further, this conference had made a significant contribution to improved administrative efficacy and efficiency.  The meaning or relevance of the rest of the quotation is so far beyond my understanding that I refrain from commenting on it.

The editorial said, concerning the Darwin conference:

But there are many more issues about the administration of justice that need scrutiny.

In July, The Australian put the spotlight on legal conferences held in attractive continental European locations, such as Florence, during the northern hemisphere summer.  These tended to be relaxed affairs and raised the question of whether they needed to be held on the other side of the world. For judges, the costs were footed by taxpayers.  For barristers, the costs were subsidised by taxpayers, given the judicial interpretation of tax laws on work-related deductions.  Quite an industry appears to have been established around organising such conferences.

The legal conference industry, in turn, is facilitated by the practice of many of our higher courts of simply shutting up shop for a couple of weeks during winter.  This practice of closing the courts to suit the interests of legal producers, rather than consumers or taxpayers, extends to the lengthy summer legal “vacations” exposed this week in The Australian.  

…

Again, there’s conferences – a four-day gabfest at a Darwin resort to ponder issues such as “Balancing Judicial Life” and another at an Italian ski resort on medical negligence.

The Weekend Australian, in its 4-5 December edition, published a number of letters supporting and opposing its editorial line.  In particular, there were letters from Bob Debus, then New South Wales Attorney-General, Ron Sackville, the chair of the JCA and Bruce Debelle, then chairman of the steering committee.  Not surprisingly, they supported the judges in one way or another.  There was also one other letter, not from a judge, supporting the judiciary and one letter, more or less supportive of the editorial line.  Only Sackville and Debelle referred to the conference.

On 7 December, the editorial was headed “Legal nitpicking won’t answer judges’ critics”.  It did not deal with the conference.  On 10 December, in the Sydney Morning Herald, Richard Ackland came to our defence in a piece which had the tone which is now typical of the spats between Murdoch and Fairfax journalists.  An extended version of the same article appeared in Justinian, with a reference to photographs of Ian Callinan and Michael McHugh in Florence.  It predicted that, “You can be sure some snappers will also be in the bushes at the judges’ January tropical retreat in Darwin”.

In my experience the steering committee has always been concerned to avoid giving cause for any perception that the conference is a junket.  However, in the end, there is no way to avoid that charge unless the activity is conducted in a caravan park in the less attractive western suburbs of Sydney.  These attacks and others have not really focussed on the alleged luxury of our hotels.  They have rather attacked the whole idea of a judicial conference, notwithstanding the almost universal use in business and the professions of such activities to deliver professional development and networking opportunities.  This focus leads me to wonder whether such attacks are part of a wider hostility towards the judiciary, perhaps rooted in our not being influenced in our work by press reports, and not always facilitating journalists’ preferred methods of collecting news.  One must also wonder whether the hostility to judicial conferences reflects the justified perception that such activities strengthen the position of the national judiciary, a matter to which I now turn.

ACHIEVEMENTS

In a paper delivered in February last year at the ANU, I suggested that since the 1960s, the judicial role in this country has been substantially expanded and strengthened.  I argued that the decision that we should no longer automatically follow decisions of the House of Lords necessarily had that effect, as has the increased frequency with which parties look to the Constitution for express or implied rights and, above all, the enormous expansion in judicial review since the 1970s.  I suggested that increasingly, the courts are seen to be resolving disputes in which the exercise of legislative or executive power is challenged, creating a compelling perception that the courts are responsible for keeping the various parliaments and executives within the law and within their proper areas of operation.  I also suggested that this conference had contributed to the strengthening of the judiciary by fostering a national judicial identity and the establishment of institutions which both evidence that national judicial identity and reinforce it.  I should say a little more about how I believe the conference has achieved those results.

First, simply by its existence over 40 years, it has created a national judicial identity.  The rotation of the conference around the capital cities has enabled judges to establish personal and professional networks upon which we have been able to build, particularly as communications have improved.  The conference has stressed the national character of the judiciary by looking across the country for its leadership.  Most of those who have chaired the steering committee have been based in centres other than Sydney or Melbourne.  

The conference has also been responsible for, or closely involved in the establishment of important institutions which are now part of the public face of the national judiciary.  The first such institution was the Australian Institute of Judicial Administration, now the Australasian Institute of Judicial Administration.  I have previously encountered some scepticism when I have claimed that the AIJA was an offspring of this conference.  Ian Sheppard always asserted as much, but I have since found other authority for the proposition.  Sir Guy Green said so in the speech to which I have already referred.  McGarvie J of the Victorian Supreme Court said as much in a paper delivered to this conference in 1992.  The paper was subsequently published in the Journal of Judicial Administration for 1991-1992.  The relevant passage is at 259.  Sir Anthony Mason made the same assertion in 65 ALJ at 78 as follows:

The Institute had its genesis in the Australian Judges’ Conference which has been held annually since the early 1970s.  That Conference examines problems and topics of common interest to judges throughout Australia.  The Conference was instrumental in bringing the Institute into existence as an independent body dedicated to the examination and implementation of ways and means of improving judicial administration, using that expression in an extended sense so as to include reform of substantive procedures.  The vision of the founders was that the Institute would play a part in the objective reform of procedures in that extended sense, and, in so doing, profit from a combination of independent research and the knowledge of judges and lawyers experienced in the way in which courts work.

I should add that, not surprisingly, Russell Fox was pre-eminent in the establishment of the AIJA.  He attributes a substantial role to Dick McGarvie.

In his paper McGarvie J, who was to become Governor of Victoria, raised the proposal advanced at the first steering committee meeting, that there be a permanent judicial organization.  He made two recommendations.  The first was that by analogy to the Australian Vice-Chancellors’ Committee, there should be an Australian Courts Committee, having the function of identifying and disseminating the views of judges.  McGarvie thought that the Chief Justices’ Conference might fulfil that role, but he professed little knowledge of how that body operated.  He proposed that all courts, not only the superior courts, be represented on this committee, and that representation would not necessarily be only by the heads of those courts.  Although this body did not emerge in quite the form envisaged by McGarvie, there was little doubt at the time that his paper prompted the re-design of the Chief Justices’ Conference as the Council of Chief Justices.  

McGarvie also suggested the establishment of the Australian Judicial Conference.  Its mandate, by analogy to a Canadian example, was “to be constantly vigilant and committed to assuring the preservation of a strong and independent judiciary”.  It was not to be primarily concerned with education.  He proposed that membership of such a body be open to all judges and magistrates.  McGarvie summarized the process by which the AIJA had been established and recommended that a similar process be adopted in giving effect to his current suggestions.  In the end, the Australian Judicial Conference was established by the steering committee of this conference, most, perhaps all of the members of the committee being the relevant incorporators.  It soon changed its name to the Judicial Conference of Australia in order to avoid confusion with a horse-racing organization.

Finally, the discussion leading to the establishment of the National Judicial College really began at our first New Zealand conference in 1991.  The gestation period was lengthy and involved other groups, but the product was worth the wait.

There can be little doubt that each of these bodies is now an integral part of the public face of the Australian judiciary.  They are all, at least in part, products of this conference.  As I have observed, they provide evidence of the existence of a national judiciary, strengthen it and provide the mechanisms by which it operates.

THE FUTURE

I do not propose to say anything more about the past.  Some may be disappointed that I have not covered more recent times in detail or, perhaps, at all.  I have my reasons.  First, I have only limited time.  Secondly, long lists of names and dates do not make for good television.  Thirdly, the nearer we come to the present, the greater the number of judges who have their own knowledge and views.  There is another reason.  With the establishment of the JCA and the working group which designed the NJCA, the role of the conference in establishing the architecture of the national judiciary, as first contemplated by Fox, and developed by McGarvie was fulfilled, at least for the moment.  In the slightly adapted words of the minutes of the first meeting of the steering committee, the conference’s present and residual role is to provide occasions for discussion of topics of interest to judges of the superior courts.  However the changes in the jurisdiction of inferior courts might suggest that there are few, if any, topics of interest to us which are not also of interest to the judges of those courts, especially the district and county courts.  Why, then, do we persist in conducting a conference which is exclusively for judges of the superior courts of general jurisdiction?   

In my view it is about judicial leadership.  The judges of the superior courts are inevitably the leaders of the national judiciary.  Our larger numbers and wider geographical distribution make us more visible than are the members of the High Court.  Further, the High Court contributes only a small number of decisions to our jurisprudence in any one year, important as that contribution is.  It hears virtually no cases at first instance.  Given our larger numbers, our geographical distribution, our standing in the courts hierarchy and our first instance and appellate functions, we are able to lead in establishing and enhancing high professional standards.  We are also well-placed to develop and encourage consistency in the law.  Indeed, it is our duty.  The opportunity to exchange views at this annual conference assists in these leadership roles.

I suggest that the future role of the conference might be:

To facilitate discussion amongst the judges of the Australian superior courts of general jurisdiction, in order to assist them in providing judicial leadership in:

•	the establishment and maintenance of high professional standards;
•	the independent performance of judicial duties;
•	innovation in court administration, case management, the law and legal practice; and
•	supporting other bodies active in these areas, including the Australasian Institute of Judicial Administration, the Judicial Conference of Australia, the National Judicial College of Australia and the Council of Chief Justices of Australia and New Zealand.

I do not mean to propose any change in what the conference does.  I am rather trying to articulate the present role in a way which may assist in the future.  In my view, the existence of a separate conference for superior court judges can only be justified by reference to our leadership role.  Perhaps it is time that we put more emphasis upon that role.

Finally, I suggest that the conference might consider taking, as part of its role, the identification and recognition, in a permanent way, of those who have made or make substantial contributions to the national judiciary.  The people to whom I have referred deserve to be remembered.