Justice reform strategy

| April 12, 2016

Australian courts are in meltdown with long waiting times, old technology and dysfunctional rules and processes. Dr David Thorp says our justice system needs a fundamental reform, and here he explains how it can be done.

There can be few things in a democratic society as important as fair access to justice, but the current legal system is so slow and costly that it effectively denies justice to much of the population. The courts are the heart of the problem and need fundamental reform.

Since their development in medieval times – overseeing local areas with no/minimal literacy, transport or communications – courts have barely changed their archaic operating practices. “Closed-shop” rules and obscure “legalese” language block the ability of ordinary citizens to make their case in plain English,[1] and restrictive rules and culture, inefficient time-wasting processes and a reliance on paper or oral evidence further limit the effective flow of information, rather than shedding light on the truth.

Currently, the Australian Family Court is in “meltdown”, with waiting times of over two years. The system is widely recognised as fundamentally flawed, unnecessarily adversarial and failing to put the interests of children first. The consequences for vulnerable families and children’s lives are devastating.

Other courts are little better. And the courts’ dysfunctional rules and processes not only shut out more efficient alternatives, they also have far-reaching repercussions for the rest of the legal system and society, who have to operate according to the courts’ rules.

Unfortunately, but not surprisingly, the recent Victorian Royal Commission report into Family Violence fails to appreciate the magnitude of reform needed. The importance of an “independent judiciary” making judgements without government interference should not be a licence to operate in a way that, in practice, destroys innocent families and small businesses.  We need a less adversarial system – one that actively tries to discover the truth and deliberately funds that activity (unlike the current system, where judges only judge on what is presented to them and lawyers only present what suits their clients).

And we can and must dramatically improve efficiencies using modern IT systems to automate information management and admin processes, and even legal advice and judgements in the not-so-distant future (which, being rule-based, are very amenable to this).

So where do we start? Should government identify specific areas for reform and automation? Well yes, to some extent in the short-term, focussing on simple but high-volume processes and types of cases (like traffic offences) that dominate court activity, so as to free-up system capacity for the fewer, more complex cases that are less amenable to automation. This may involve changing specific rules, protocols and legislation, and investing in IT to support information management and process automation (e.g. scheduling court dates, which are currently done by the judge in court!). The good news for those working in the system? More interesting and satisfying work! It’s not like there’s a shortage of cases.

But governments are not very good at picking the right areas to improve, or actually delivering efficient systems. So to substantially and continually improve things, we need to go back to first principles and re-design a modern, efficient and competitive legal system.[2]

1. Legislate a new high-level, principles-based legal framework, that:

a. Establishes overriding court objectives to:

  • Seek out the truth – within a framework that facilitates ordinary citizens presenting evidence in plain English (banning restrictive / closed-shop practices) and aims in general to include all contextual information (only rarely excluding information as “inadmissible” or “not relevant” – in contrast to the current system).
  • Make judgements that are best for society as a whole (including all financial and non-financial impacts), based on the best available evidence that can reasonably be gathered (without delays causing worse outcomes). i.e. fundamentally changing the current system that makes judgements based on narrowly defined or interpreted laws or just precedents, even when the evidence indicates this will worsen overall outcomes. e.g. the appalling level of aboriginal incarcerations and resulting inter-generational disadvantage and costs to welfare and justice services and society as a whole.

b. Removes all legal obstacles to courts and other legal organisations eliminating, automating and simplifying unnecessary, inefficient and overly-prescriptive processes.

c. Ensures and enhances the independence and fairness of judgements, with:

  • Online “rating systems” required for all entities in the legal system (including a minimum set of performance measures such as speed, cost and % of cases successfully appealed) to inform prospective clients (parties in dispute), and,
  • Standard, equitable processes enabling parties to mutually agree who will investigate and judge a case (rather than the first party submitting a case being able to choose the judge and court that is most likely to support their case).

2. Establish, licence and fund a competitive “independent mediation/pre-judge” industry

a. The role of the “pre-judge” is to gather, structure and concisely present all information relevant to the case (guided by the new legal framework objective to seek out the truth), along with a recommended judgement (including recommended penalties), with supporting reference to the evidence, law/precedent and any other reasoning.

  • The objective of this role is facilitate rapid decision-making by a judge if/when the matter is presented to court, or more preferably (and in most cases) to encourage/ mediate a voluntarily agreed judgement by the parties, which would then become binding without requiring a judge’s approval in court.
  • The role would not involve imposing judgements or orders/penalties on parties for non-cooperation etc.  However, information held by individuals or organisations (including from other court cases) could be sought by new efficient subpoena processes, and failure to provide information to the pre-judge may be noted in his/her report, and could legitimately affect a judge’s decision.
  • Under the new legal framework, even cases that go to a judge may be decided “off line” by the judge, without requiring a costly hearing with all attending in court.

b. Any individual or organisation could apply to be licensed to carry out this “pre-judge” role. Initial licensees might require legal qualifications, but once the market has developed enough for clients to be able to rely on (mandated) rating systems to inform their choice of provider, this requirement should be dropped (thus enabling automated Artificial Intelligence websites to be licensed).

  • Pre-judge organisations could combine expertise from a range of disciplines (e.g. finance, psychology etc.), unlike an individual judge.[3]
  • To avoid conflict of interest, organisations that adopt advocacy roles (for prosecution or defence) could not be licensed as a pre-judge (unless adequate ring-fencing rules can be devised).

c. Government (and client) funding would go to the pre-judges chosen by clients, which would provide the incentive for pre-judge organisations to continually invest in developing more efficient processes and systems (facilitated by the new legal framework).

  • New government funding for this process should quickly repay itself through savings in the court system and the rest of the economy.

d. After an initial trial period the pre-judge process should be made mandatory before proceeding to court, in order to prevent wealthy individuals and businesses using slow and expensive court processes as a means to deny justice to others.

3. Create a single, competitive court system

a. Allow any appropriate individual or organisation to be licenced as a “court-judge” in any/all fields of law.

b. Current government court funding would flow on an activity basis to the “court-judges” mutually chosen by disputing parties (with the support of market ratings, as for pre-judges described above).

c. Appeals could be made to any other licensed court-judge. “Appeal courts” would simply become those with ratings showing a smaller percentage of decisions being successfully changed on appeal. The distinction between current court hierarchies and systems would disappear, except there would still need to be a single (monopoly) High Court with the final say on all matters.

[1] In fact much of the language that French Normans introduced to English courts and ruling systems was deliberately designed to shut out the invaded Anglo-Saxons.

[2] As per, and as a high priority for National Competition Reform: competitionpolicyreview.gov.au

[3] A current example is DivorcePartners.com.au