The Australian Law Reform Commission

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2. Education, training and accountability

Introduction

2.1 The terms of reference for this inquiry ask the Commission to consider `the significance of legal education and professional training to the legal process' as well as the `training, functions, duties and role of judicial officers as managers of the litigation process'. The Commission has produced a separate Issues Paper (IP 21) [1] dedicated to these matters, and education, training and judicial accountability was the subject of a chapter in Discussion Paper 62, which preceded this report. [2]

2.2 In its submission to the Commission in response to IP 21, the Law Council of Australia indicated that it believed that

a general review of legal education is ... peripheral to the Commission's terms of reference, [and that] such a review is unnecessary. Each Australian jurisdiction has an authority which is specifically charged with the task of ensuring that legal practitioners in that jurisdiction have received appropriate education and training before commencing practice. The introduction of the Mutual Recognition legislation has meant that the various jurisdictions have taken substantial steps towards establishing uniform requirements at both the undergraduate and pre-admission levels. [3]

This view is repeated in the Law Council's submission in response to DP 62. [4]

2.3 With respect, the Commission's extensive research and consultations and the weight of submissions [5] over the course of this inquiry make clear that education, training, and accountability play a critical role in shaping the `legal culture' -- and thus in determining how well the system operates in practice. [6] In the rest of this report, the Commission makes a large number of recommendations aimed mainly at fine-tuning the federal civil justice system through improved rules, practices and procedures. However, it is evident that, while it is of the utmost importance to get the structures right, achieving systemic reform and maintaining high standards of performance rely on the development of a healthy professional culture -- one that values lifelong learning and takes ethical concerns seriously.

2.4 In this chapter, as in DP 62, the Commission looks separately at the education and training needs of lawyers, federal judges, judicial officers and tribunal members. Finally, consideration is given to establishing an effective (and constitutionally valid) mechanism to improve judicial accountability, both as an aspect of improving the performance of the federal justice system and increasing public confidence in its operations.

Education for the legal profession

2.5 In DP 62, the Commission noted that the `requirement of higher educational qualifications is classically one of the defining features of a profession'. [7] However, theory and practice in relation to the nature, shape, siting, funding and regulation of professional education is contingent and dynamic, and thus open to contest and controversy.

Changing patterns of legal education

The traditional divide

2.6 Unlike the university based pattern of legal education which emerged early on in continental Europe, [8] common law countries retained their traditional apprenticeship approaches well into this century. [9] Legal education in English speaking countries also has been affected by the traditional common law paradigm of private legal practice, regulation of the profession by the courts, and the appointment of senior practitioners (usually counsel) to the judiciary. This contrasts with European civil law traditions of an enhanced role for public sector lawyering, state regulation of legal practice, and career judiciaries. [10]

2.7 Since the 1960s, legal education in English speaking countries generally has been described as being

divided into three relatively discrete stages, involving (1) academic training at a university; (2) subsequent practical training with both institutional and in-service components; and (3) continuing education. [11]

2.8 By and large, first phase legal education in Australia is provided by universities in courses leading to the award of a Bachelor of Laws (LLB), the degree which is generally recognised for the purposes of admission to practice. [12] A number of university law schools in Australia still operate `straight law' degrees, but in practice the great majority of students are enrolled in combined degree programs or already hold one or more degrees in other disciplines. [13] This places the Australian pattern somewhere between the United Kingdom model, which is still predominantly undergraduate, and the model in the United States and common law Canada, which is entirely postgraduate. [14]

Practical legal training

2.9 Practical legal training (PLT) has largely been the preserve of the profession, whether delivered directly through articled clerkships (for solicitors) or pupillage programs (for barristers), or through specially designed institutional courses of instruction, such as those mounted by the College of Law in New South Wales and the Leo Cussen Institute in Victoria. Beginning in the 1970s, some of these PLT institutions affiliated with universities [15] -- at least in part to take advantage of Commonwealth funding for universities and students. More recently, a number of university law schools have moved into the direct provision of PLT (in competition with the traditional providers), mainly in the form of `add-on' programs available after the completion of LLB studies, [16] but sometimes integrated within the basic law degree program. [17] Motivation for this move is mixed -- in part, it is driven by the desire to provide a service to existing students as well to attract new students; in part, by the imperatives of federal arrangements; [18] and in part by an interest in experimenting with new pedagogical approaches.

2.10 Monash University recently received approval from the Council of Legal Education in Victoria to offer a postgraduate (that is, post-LLB) PLT course, over the opposition of the Leo Cussen Institute. Students will be given extensive experience advising clients through a community legal centre, such as Springvale Legal Service. A novel feature of the course is the `pervasive approach' to ethical issues. These are built into the activities and tasks throughout the course so that students become familiar with identifying ethical issues as well as resolving them.

Continuing legal education

2.11 Continuing legal education (CLE) has become a very crowded and competitive field, which now includes legal professional associations, university law schools, PLT institutions, private companies and law firms.

A period of dynamic change

2.12 As noted in DP 62, there have always been some variations to this general pattern of legal education in Australia, and if anything the offerings have been more diverse in recent years. [19] In terms of substitution regimes, for example, it is still possible in New South Wales to gain admission via successful completion of a non-degree program of study and examinations administered by the Legal Practitioners' Admission Board (LPAB), [20] while articled clerkships are still available in some jurisdictions instead of PLT. [21]

2.13 Over the past decade or so, legal education in Australia has undergone a period of unprecedented growth and change. To some extent, this parallels the dynamic change in the legal profession -- characterised by rapid growth; moves towards national admission and practice; globalisation; the end of traditional statutory monopolies; the application of competition policy and competitive pressures; the rise of corporate `mega-firms'; the emergence of multi-disciplinary partnerships; increasing calls for public accountability; more demanding clients; and the influence of new information and communication technologies -- but many of the changes in legal education have been driven by other factors. [22]

The role of university law schools

2.14 In 1960, there were six university law schools, one in each State capital. At the time of the Pearce Committee's review of Australian legal education, [23] completed in 1987, there were twelve university law schools. One of the major recommendations of the Pearce Committee was that, especially given the limited resources available in a country the size of Australia, no new law schools should be established. Nevertheless, in little more than a decade, the number of university law schools more than doubled to 28, with at least two other programs scheduled to commence soon. [24]

2.15 There are 37 members of the Australian Vice-Chancellor's Committee (AVCC), the peak association, so that the absence of a law faculty in a university is now more remarkable than the presence of one. This extraordinary growth was facilitated by the major policy shifts undertaken during the tenure of John Dawkins as Minister for Higher Education. A uniform, national system was established; the binary divide (between universities and colleges of advanced education/institutes of technology) eliminated and institutions merged; formula funding introduced which is largely dependent upon student load; and control over the approval of new degree programs largely relinquished by the federal bureaucracy, leaving this for individual universities to determine.

Law faculties are attractive propositions for universities, bringing prestige, professional links and excellent students, at a modest cost compared with comparable professional programs such as medicine, dentistry, veterinary science, architecture or engineering. [25]

2.16 As noted in DP 62,

This phenomenon has not been replicated elsewhere. Over the same period, only two new (ABA-accredited) law schools were established in the United States, one in New Zealand, and none in Canada. The United States now has 176 ABA-accredited law schools, which is nearly six times the number in Australia -- but with about 14 times the population base. Canada has 21 university law schools [within its 91 universities] with a population of more than 30 million. [26]

2.17 For some years, Australian law schools have accepted that their dual mission was to provide (or contribute to, in the case of combined degrees) a broad liberal education, [27] as well as to provide a basic grounding for those entering the profession. As stated in DP 62

To some extent, law is coming to be seen as a prestigious generalist degree that can prepare students for a variety of occupations. At the same time, law schools recognise their responsibility to provide the training necessary to prepare future legal practitioners, and there is a trend towards increasing the proportion of time and resources devoted to `professional skills training', whether through clinical or classroom based methods. [28]

2.18 In the United States, `live client' clinical programs, usually focussing on community legal centre/poverty law type practice, have been widely used by law schools to supplement classroom instruction on substantive law, and to provide students with an appreciation of the nature of `law as it is actually practised' -- including the social dimension and the ethical dilemmas which may arise. [29] Virtually every accredited American law school operates a substantial clinical practice program, and some have a range of programs which cater for specialist interests (such as environmental law, criminal appeals, civil liberties, children, and so on).

2.19 In Australia, the much lower level of resources available to law schools has meant that only a handful of law schools run clinical programs -- and only the University of Newcastle allows students to undertake a fully integrated clinical degree program rather than simply an elective unit. [30] Both for reasons of resources as well as recognition of the importance of non-adversarial forms of dispute resolution, the emerging trend in Australia has been toward the teaching of generic `professional skills' [31] -- that is, skills which will be needed in any subsequent legal practice, but would be equally valuable in a range of other occupations and professions.

According to this view, legal education should focus on the development of skills other than advocacy and the analysis of appellate judgments, to include training in fact finding, negotiation and facilitation skills, as well as the discrete skills, functions and ethics associated with decision making. [32]

2.20 As noted in DP 62, the major 1992 review of legal education in the United States -- the MacCrate report [33] -- sought to narrow the gap between what was taught in law schools and the day to day skills (and ethical understandings) required of modern legal practitioners. Perhaps the best known and most quoted part of the MacCrate report was the `Statement of Skills and Values' (SSV), which seeks to enumerate core skills for lawyers which law schools are meant to address. According to MacCrate, the 10 fundamental lawyering skills are

problem solving
legal analysis and reasoning
legal research
factual investigation
communication (oral and written)
counselling clients
negotiation
understanding litigation and alternative dispute resolution processes and consequences
organisation and management of legal work, and
recognising and resolving ethical dilemmas. [34]

The `fundamental values of the profession' according to the MacCrate report, are

the provision of competent representation
striving to promote justice, fairness and morality
striving to improve the profession, and
professional self development. [35]

2.21 As the Commission commented in DP 62

It is notable that where the MacCrate Report focusses on providing law graduates with the high level professional skills and values they will need to operate in a dynamic work environment, and assumes that lawyers will keep abreast of the substantive law as an aspect of professional self development, the equivalent Australian list -- the `Priestley 11' -- focusses entirely on specifying areas of substantive law. [36] In other words, MacCrate would orient legal education around what lawyers need to be able to do, while the Australian position is still anchored around outmoded notions of what lawyers need to know. [37]

2.22 Similarly, the central theme of the Canadian Bar Association's Task Force Report on Systems of Civil Justice [38] is the need to ensure that there are more opportunities for early settlement or resolution of disputes within the legal system. In terms of education and training needs to support this approach, Recommendation 49 of that report recommended that

(a) The CBA and the Canadian Council of Law Deans, the Canadian Association of Law Teachers and the Federation of Law Societies form a joint multi-disciplinary committee to consider and propose a comprehensive legal education plan to assist in civil justice reform for the 21st century, and
(b) The plan address the whole spectrum of service providers and the full range of educational opportunities.

2.23 Following this recommendation, a `joint multi-sectoral committee' was established in 1998, comprised of four academics, one judge, one practitioner and one CLE provider, and a discussion paper released in late 1999. [39] The `Recommendation 49 Committee' settled upon a number of premises for its conclusions and proposals, including

The study of law necessarily involves a study of human interaction and conflict and of various approaches to responding to these phenomena. The practice of law moves the study of law directly into engagement with human interaction, and through this engagement is itself part of the process of norm or law creation. To ensure that the law and legal system operate to support social development and improvement in human interaction, rather than exacerbating conflict, lawyers must develop high levels of self-awareness and of reflection on their practice at the individual and general levels.

A comprehensive modern legal education curriculum must focus on the development of this awareness and encourage effective social interaction, knowledge and information as an essential aspect of the discipline of law, as well as developing technical expertise about application of legal rules and the various ameliorative responses available in the legal system.

This requires a cross-disciplinary approach to legal education and may include materials and faculty from a range of social sciences such as psychology, sociology, conflict resolution specialists and social work schools. This information is a substantive aspect of legal education that is obtained through a combination of theory, experiential learning and conflict analysis skill, including legal analysis. [40]

2.24 The Recommendation 49 Committee's proposals for discussion mirror the points above, as well as specifying that

Law students should have the opportunity in substantive courses to practice negotiating the settlement of legal problems and to develop knowledge about theories of analysis of interpersonal conflict. Students should be expected to develop an awareness of contract clauses that provide for dispute resolution as well as to design and critically evaluate processes for resolving conflicts in light of broader public interest concerns and legal rights.

In order to develop their negotiation, communication and conflict resolution skills, law students should be encouraged, through varying forms of evaluation, to carry out some team projects that develop the ability to reach solutions and resolve interpersonal conflict effectively. There should be an opportunity for reflection on these exercises.

Civil procedure courses should include information about the various dispute resolution processes and practices available and their utility in resolving various kinds of problems.

Law schools are urged to consider making mandatory ethics courses which should include negotiation and mediation ethics as well as issues relating to obligations of lawyers regarding human rights and inter-personal relationships. [41]

A need for national standards and#/or accreditation?

2.25 In DP 62, the Commission suggested that the rapid growth and change in Australian legal education [42] might militate in favour of `a body to provide a degree of oversight and coordination to ensure that standards are developed and maintained, and a measure of quality assurance provided', [43] to be known as the Australian Council on Legal Education (ACOLE).

The federal Attorney-General, in consultation with the Standing Committee of Attorneys-General (SCAG), should establish a broadly constituted advisory body known as the Australian Council on Legal Education. This council would be charged with developing model standards for legal education and training for lawyers and other key participants in the justice system. [44]

2.26 However, the Commission cautioned that ACOLE should not be, or be allowed to become

a monolithic body engaged in central planning and enforcing a single vision of what is required for the education and training of the Australian legal profession. Rather, the institution is to ensure the regular exchange of information, dialogue, coordination and collaboration in this area. This process should also include the development of coherent national standards and objectives in relation to all aspects of legal education and training. [45]

2.27 The Commission further explained the proposed nature and role of ACOLE in the following terms

Membership in such a body should be broadly constituted and drawn from the major interest groups, such as legal educators, practising lawyers, consumer groups, judicial officers, officials of legal professional associations, students and so on. The Commission believes very strongly that this council should not be a representative body, comprised of nominees from peak organisations or appointees from a specified set of categories (for example, one law dean, one judge, one law society president). Locking members into fixed positions based on the positions of their home organisations would severely inhibit the ability of the council to operate as a genuinely deliberative body and would impair the quality of the advice provided to the Attorney-General.

The council should have responsibility for considering as aspects of undergraduate legal education (LLB degree programs and the equivalent), PLT, CLE, the educational requirements for admission to practise and for specialist accreditation, and education and training issues for non lawyer participants in the justice system (such as ADR practitioners).

Given that the setting of educational requirements for admission purposes (and the associated accreditation of educational programs) is currently a State and Territory matter, and there is no suggestion that State and Territory admitting authorities will readily relinquish this power (even with the development of portable practising certificates), the work of the proposed council will of necessity be advisory. Thus, the national standards it would promulgate would serve as benchmarks rather than rules. Similarly, any regime the council might establish to accredit education providers (whether this involved law schools, or PLT providers, or CLE programs) -- if indeed it moved in this direction -- would carry considerable weight, but not the force of law, unless adopted by an admitting authority.

Given the dynamic state of legal education in this country, and increased blending and merging of the stages of legal education, the Commission questions whether the proposed council should be organised formally into committees or divisions based on the traditional three phases approach. While the council will, of course, determine its own processes and working groups, it should be careful not to structure itself in such a way as to constrain debate about the most effective means of delivering high quality legal education, nor to discourage innovation and experimentation in practice. [46]

2.28 The Commission's proposal 3.1 stemmed, in substantial part, from prior initiatives aimed at establishing a form of national appraisal or accreditation in respect of legal education in Australia.

Initiatives under the Law Council's Blueprint

2.29 In 1994, the Law Council released its Blueprint for the structure of the legal profession [47] (the Blueprint) which, among other things, proposed the establishment of a National Appraisal and Standards Committee to accredit law schools, as an incident to the move to uniform, national admission. It specified that this Committee should be comprised of

a member of the judiciary (who would also serve as chairman)
the federal Attorney-General (or a nominee)
four Law Council representatives (not more than one from each state/territory)
four law school representatives (not more than one from each state/territory) and
one lay person (nominated by the Attorney-General and the President of the Law Council).

2.30 This Committee specifically would be asked to consider such matters as

course objectives and curriculum structures

teaching practices

assessment procedures

staff appointment and promotion procedures

management structures

resource allocation procedures.

2.31 Not surprisingly, the Committee (now Council) of Australian Law Deans (CALD) expressed serious reservations about this aspect of the Blueprint, particularly in respect of the fact that the proposal was developed and ratified by the Law Council without any process of consultation with CALD or with law schools; the suggested composition of the Appraisal Committee (with only four of the 11 members being legal educators); the intrusive nature of the terms of reference, which included internal matters of personnel and resource management; and the unexplained method for funding such a labour-intensive system.

2.32 A letter from the then President of the Law Council, Mr Stuart Fowler, to CALD, sought to assure law deans that the Law Council had no intention of encroaching impermissibly into areas of academic expertise, explaining that

Ultimately, the whole purpose of accrediting law schools and faculties is to determine the level of PLT, if any, required upon graduation as a prerequisite to admission to practise. [48]

2.33 The Law Council also undertook to consult further before proceeding. In 1996, the Law Council set up a National Advisory Committee for Legal Education and Professional Admission (NACLEPA), which included two representatives from CALD.

The Consultative Committee's proposal to the Standing Committee of Attorneys-General (SCAG)

2.34 In October 1997, the Consultative Committee of State and Territorial Law Admitting Authorities (the Consultative Committee) made a proposal to SCAG for the establishment of a National Appraisal Council for the Legal Profession (National Appraisal Council) [49] through an Inter-governmental Agreement (and incorporated in one of the participating jurisdictions), with `a mechanism for converting Council decisions into obligations which bind admitting authorities in each jurisdiction, perhaps by statute or subordinate legislation'. [50]

to ensure that national standards are developed and applied for --

appraising the academic and practical training required of both Australian and overseas applicants for admission to practise law;
determining any additional studies or practical training required by overseas applicants for admission to practise law in Australia;
appraising the suitability of subjects offered by tertiary courses in law, in order to satisfy the national academic and practical training requirements developed by the Council. [51]

2.36 The Consultative Committee stated that the National Appraisal Council's `primary function would be "to advise and make recommendations to" the admitting authority in each jurisdiction, in relation to each of those matters'. However, `if necessary', the Council's decisions should be given binding force.

Because of the peculiar difficulties which have prevented national standards being uniformly applied in the past, there must be fail-safe mechanisms which, if necessary, can be triggered to ensure that each jurisdiction complies with, and applies, standards determined by the Council. [52]

a President, appointed by the Council of Chief Justices
8 representatives, drawn from each admitting authority, nominated by the relevant Chief Justice
3 persons nominated by the Law Council of Australia
2 representatives nominated by the Council of Australian Law Deans
1 representative nominated by the Australasian Practical Legal Education Council
1 representative nominated by SCAG
1 other `eminent person' nominated by SCAG.

2.38 The Consultative Committee's proposal noted that, realistically, a Council of this size and composition could only afford to meet two or three times per year, so that day-to-day management would have to be vested in an Executive Committee with substantial discretion. [53]

2.39 It is notable that where CALD was concerned about the level of academic participation (4 of 11 members) in the Blueprint's proposal for national appraisal of legal education, the Consultative Committee's proposal would reduce this further to 2 of 17 members. The Law Council's submission in response to DP 62 suggests that [54]

(i) In preparing the proposal for the National Appraisal Council and considering its composition, the Law Council and the Priestley Committee followed the model for a `good practice' course review and accreditation process set by the Higher Education Council. In its publication Professional education and credentialism, [55] the Higher Education Council stated that, in its view, the model should include all stakeholders. [56]

2.40 However, while the proposal lists most of the key `stakeholders', it omits others (for example, law students, [57] and the Department of Education, Training and Youth Affairs (DETYA)), and heavily skews the balance.

2.41 By way of comparison, in 1993, the American Bar Association's (ABA) 18 member Accreditation Committee, drawn from 11 states and the District of Columbia, [58] was comprised of 10 legal academics (including four law deans and the chair); 3 judges; 2 officials involved in the setting and administration of State bar examinations; 2 public (lay) representatives and 1 practitioner. The ABA balance is clearly drawn in favour of those with special or hands-on expertise in legal education, while recognising the value of professional, judicial and community perspectives.

2.42 In England and Wales, the Lord Chancellor's Advisory Committee on Legal Education and Conduct was established [59] in 1990 with a general duty [60] to assist in the maintenance and development of standards in the education, training and conduct of providers of legal services, and to keep under review, and advise upon, legal education. The Advisory Committee -- which was notable for its lay majority -- consisted of a Chairman, who was a Lord of Appeal or a Supreme Court judge, and 16 others appointed by the Lord Chancellor, including a Circuit judge; two practising barristers appointed after consultation with the General Council of the Bar; two solicitors appointed after consultation with the Law Society; two law teachers, appointed after consultation with the relevant institutions; and nine persons other than judges, barristers, solicitors and law teachers, appointed for their experience in, or knowledge of, the provision of legal services, the working of the courts, social conditions, consumer affairs, commercial affairs, or the maintenance of professional standards in professions other than law.

2.43 In late 1999, the Advisory Committee was abolished [61] and replaced by the Legal Services Consultative Panel, [62] with a similar array of responsibilities in relation to legal education and training. All members of the Panel are now appointed by the Lord Chancellor, who is directed only to the `desirability' of ensuring that the Panel

includes persons who (between them) have experience in or knowledge of --
(a) the provision of legal services;
(b) the lay advice sector;
(c) civil or criminal proceedings and the working of the courts;
(d) legal education and training;
(e) the maintenance of the professional standards of persons who provide legal services;
(f) the maintenance of standards in professions other than the legal profession;
(g) consumer affairs;
(h) commercial affairs; and
(i) social conditions. [63]

Again, the contrast with the Consultative Committee-Law Council proposal is stark.

2.44 The Consultative Committee also proposed that the Commonwealth and the States and Territories share the costs of meetings of the Council and the Executive Committee, with the remainder of the Council's operations funded from

admission registration fees, collected by each admitting authority;
fees for assessing the qualification of overseas applicants, collected by each admitting authority; and
fees for appraising the subjects in law courses, collected from law schools. [64]

2.45 Despite the prior adverse reaction to the lack of any consultative process in the formulation of the Law Council's Blueprint, the Consultative Committee made no effort to include CALD or the law school community in the development of its proposal for a National Appraisal Council, nor was CALD notified formally about such a proposal being put to SCAG.

2.46 In the event, SCAG rejected the proposal. [65] The Commission understands that the Attorneys-General expressed serious reservations, on the grounds that

the proposed appraisal body was decidedly unrepresentative
statutory powers were sought, when SCAG would prefer an advisory role
while States and Territories are happy to participate in a cooperative regime to achieve greater consistency and uniformity, the proposal would interfere with the right of States and Territories to control their own professions, and there is no imminent prospect that States and Territories would concede the right to operate their own admitting authorities
as a matter of access and equity, no higher barriers than already exist should be placed on entry into the legal profession.

2.47 Nevertheless, the Consultative Committee's submission to this inquiry reports that `[w]hile the idea has receded it has not been abandoned', and that `the Council of Chief Justices ... remains firmly supportive of the proposal for a National Advisory Council of the type advocated in the joint proposal of 1997'. [66]

2.48 It is notable that the Consultative Committee's recitation of the problems in the existing system (based upon NACLEPA's perceptions) -- and thus the mischief to be remedied by the establishment of a National Appraisal Council -- was expressed entirely in terms of the shortcomings and difficulties of admitting authorities (inconsistent interpretation and application of standards, `perfunctory and superficial' appraisal of law courses, inability to assess effectively overseas qualifications). [67] Thus, SCAG's conclusion was that, if there are significant problems with the way admitting authorities are operating, this would be best addressed by forging greater cooperation and consistency among the admitting authorities, such as by way of improved information sharing.

The American Bar Association accreditation process in the United States

2.49 A national accreditation scheme has operated in the United States since 1921. Separate, comprehensive accreditation standards are promulgated by the ABA and the Association of American Law Schools (AALS), although there is not a great deal of difference between the two in practice. The AALS standards place more emphasis on scholarship and teaching issues; the ABA standards are somewhat more detailed on issues of resources and administration/management. Taken together, there are many hundreds of pages of standards, guidelines, interpretations and examples. [68] It is important to note that, notwithstanding the comprehensive nature of these standards in many areas, they do not intrude in any way into the content of the law degree (overall, or with respect to individual subjects), a matter which is left entirely to the judgment of law schools. However, the system of State bar examinations has some influence on curriculum decisions, and certainly influences student choice of subjects.

2.50 Every accredited law school (including those provisionally accredited) must annually complete and file a lengthy questionnaire covering all aspects of the accreditation standards. The initial accreditation process involves a rather close and continuing scrutiny of the law school by a visiting panel drawn from the larger ABA Accreditation Committee. (As a matter of practice, the Visiting Panel is usually a joint ABA/AALS panel, which assesses for accreditation and membership, in order to avoid unnecessary duplication). Established law schools only receive the general panel visit every seven years (although there may be more particularised visits, such as those which focus on clinical education). Panel visits take 1 to 2 days, and involve inspections of facilities and programs as well as extensive interviews with students, graduates, academic and general staff, and senior law school and university administrators.

2.51 It should be noted that ABA accreditation is not a prerequisite for admission purposes in the United States, although it may be influential. Each admitting authority makes its own decisions about the accrediting of degree programs. In California, for example, there is a three-tier system: ABA-accredited law schools effectively receive automatic State recognition; other law schools may apply for State accreditation and recognition; and even unaccredited law schools are permitted to operate, although their students must pass a special preliminary examination (the so-called `Baby Bar') before they are permitted to undertake the State bar examination, which determines admission to practice. Graduates of non-accredited law schools are disadvantaged in terms of interstate and reciprocal admissions, however, since the rules relating to admission of out-of-state lawyers generally favour graduates of ABA-accredited institutions.

2.52 Apart from routine acceptance for admission purposes, ABA accreditation has other benefits, of course -- prestige, ready transferability of academic credits, and so on. Virtually every `serious' new law school seeks provisional, and then craves full, accreditation, and every accredited law school would be mortified about any threat to this status. The AALS scheme is voluntary, and relies entirely on the `prestige of membership' to attract members and enforce its standards.

2.53 There is evidence of some dissatisfaction with, and some controversy attached to, the ABA system. Many of the leading law schools see the process as unduly time consuming, overly prescriptive and unnecessarily intrusive into matters of academic policy, while delivering them few real benefits. Many of the newer or less elite law schools feel themselves to be in a state of continuous jeopardy, and to be unable to set their own priorities or to carve out their own niche in the educational marketplace. However, there is a substantial middle core of American law schools generally in favour of reforming and retaining the system.

2.54 In 1994 the ABA formed a special commission (the Wahl Commission) to study the accreditation process and standards. [69] It is understood that the Commission is revising the standards to make them less intrusive, [70] and to intensify the focus on institutional self-review, rather than on the external panel assessment.

The Canadian position

2.55 There is no national accreditation system for law schools in Canada, nor is there any regulation of the content of a law degree. This is instructive, since Canada is far closer to Australia than is the United States in terms of the number of law schools and law students; the number of jurisdictions in the federal system; the public-private balance; the fee structure and resource base of universities; legal culture and the traditions of legal practice, and so on. Professor Jeremy Webber suggests that

This system, though ostensibly unregulated externally, still produces people who have a broad background in law, who take professional values seriously, and who are fully prepared for, for example, a high-powered commercial practice. [71]

2.56 Webber notes that there are sufficient `incentives within the system for taking breadth of preparation seriously', including market pressures, the professionalism and professional identification of law teachers, and student demands, such that `the decisions one gets from a lightly regulated system are no worse than those generally imposed externally, and indeed they may be less prone to the pitfalls of rule-making by anecdote and hazy nostalgia'. [72]

Comparisons with the Australian position

2.57 Any consideration of the adoption of an accreditation system along the lines operated in the United States must recognise the very important differences between our systems of legal education. These include

the much larger number of law schools in the United States (176 ABA-accredited, with many hundreds more which are partially-accredited or non-accredited)
the larger number of separate jurisdictions (50 States, plus Territories) and, thus, admitting authorities
the greater mobility of American law students and lawyers, which means admitting authorities are regularly faced with making decisions about interstate qualifications
the existence and influence of State bar examinations (and the absence of any PLT requirements)
the much larger number and proportion of private law schools, and the relative ease with which `universities' and `law schools' can be established, without the need for legislation and
the vastly greater resource base of American law schools (both public and private), which charge substantial tuition fees, have large endowments, and receive tremendous support from alumni and benefactors.

2.58 These circumstances may militate in favour of a formal, national accreditation system in the United States. There is little quality control over higher education or legal education at the State or Territory level in the United States, and even less at the national level. It would be very difficult for each jurisdiction to maintain familiarity with the plethora of law schools in the various States and Territories.

2.59 At the same time, the sheer size of the `system' of American legal education delivers the economies of scale and the resources necessary to run an effective accreditation process. [73] Finally, American law schools are in a position, within reason, to address resource-sensitive accreditation concerns by seeking additional resources from the State legislature (for many public law schools), by increasing their tuition fees (for public and private law schools) and by calling for additional alumni support and corporate sponsorship (again, for all law schools).

2.60 The position in Australia is different in almost every respect. [74] Here, we have

law primarily as part of an undergraduate (usually combined) degree program -- and thus Australian law schools have a somewhat broader `liberal education' mission than American graduate law schools, which are more narrowly oriented towards `professional' preparation
a relatively smaller number of law schools (even if growing), which are much less able to remain `anonymous' in the student/consumer or professional marketplace
only two private law schools
a unified national system for the public universities, which is fully accountable to the federal bureaucracy (DETYA), and subject to periodic reviews and quality assurance processes
only eight state and territory admitting authorities
PLT requirements, but no bar examinations, prior to admission
limited financial support from law school alumni and from the legal profession generally
low levels of mobility, still, among admitted lawyers, and especially among students
a federally funded system, with virtually no contribution from the States to legal education (whereas State Departments of Health are more involved in medical schools, through clinical programs and teaching hospitals)
less autonomy over tuition fees (none in the case of Higher Education Contribution Scheme (HECS) students, who are the vast majority of LLB students)
a sizeable proportion of law students enrolled in university law courses do not intend to practice law
a sizeable proportion of intending legal practitioners who are enrolled in non-university law courses (for example, through the NSW Legal Practitioners Admission Board). [75]

Advantages and disadvantages of formal, national accreditation

2.61 Assuming that a National Appraisal Council could be constituted with suitable membership, reasonable terms of reference, and an adequate budget, the benefits which might flow from national accreditation include [76]

the promotion of a truly national legal profession
a measure of quality assurance for legal education
greater inducement for law schools to engage in regular self review, in anticipation of external review
possible leverage for law school deans with university administrations over resources, [77] although in competition with heads of many other programs subject to external accreditation
the creation of opportunities for professional and community involvement in legal education.

2.62 However, national accreditation systems of the sort proposed by the Consultative Committee or the Law Council would have a number of significant disadvantages. Such systems could

discourage diversity and innovation, and tend to be self replicating (that is, entrenching a status quo)
lead to greater external (judicial and professional) dominance over university law schools, endangering academic freedom
encourage the establishment of a more narrowly vocational paradigm of legal education and
result in significant extra work and costs for law schools, simply in order to comply with reporting requirements.

Reactions to the Commission's discussion paper

2.63 Reactions to proposal 3.1 of DP 62 were mainly favourable. However, as detailed below, the views expressed about the nature, composition, and functions of an Australian Council on Legal Education were contradictory -- and to a large extent mutually exclusive -- such that the Commission feels unable to make a positive recommendation at this time. Instead, the Commission believes that the major stakeholders need to do a great deal more planning, and full consultation should take place, before a system can be established which will produce the desired results in the public interest, and have the confidence of all of the key participants.

2.64 There was cautious support from legal academics for a national authority which would set minimum standards -- but concern over the composition of such a body, and its working assumptions about the way legal education in Australia should develop. At its meeting in Canberra on 8 October 1999, CALD passed a resolution in the following terms

The Deans support the establishment of an appropriately funded national body that would promote innovation, diverse scholarly and high-quality legal education, and on which the Deans are significantly represented.

In commenting on this resolution, the then convenor of CALD, Professor Paul Redmond of the University of New South Wales, was quoted as saying that if a new body such as the one the Commission floated in DP 62 was established, it could `reconsider the approach taken in the 11 Priestley areas of knowledge for legal education'. [78]

2.65 Professor Andrew Stewart of Flinders University, a former convenor of CALD and a founding member of NACLEPA, also envisaged this sort of role for a national body in his submission.

There is an urgent need to review the scope and purpose of legal education in this country, to determine what kind of training a practising lawyer needs and whether that training should be broken down into distinct `phases', and to set appropriate minimum standards for education and training programmes. In so small a country (in terms of population and size of economy), and with provision now for mutual recognition of qualifications and the `portable' practising certificate, it is imperative that this task be undertaken at a national level.

It is also imperative that any review of legal education and ongoing development of standards be a matter for a body that is much more broadly constituted than the existing Consultative Committee of State and Territorial Admitting Authorities (the `Priestley Committee'). That committee, which (as far as I am aware) is still composed entirely of judges and hence is not even representative of the variously constituted admitting authorities, has shown no inclination to conduct the kind of wide-ranging reconsideration of legal education requirements that is plainly called for by developments over the past two decades. As the Discussion Paper correctly points out, its prescriptions for undergraduate education (the `Priestley Eleven') are outmoded, and in my opinion have severely and unnecessarily constrained the capacity of Australian law schools to engage in innovative curriculum development. As for the standards it has set in relation to practical legal training (the `Priestley Twelve'), they have certainly not been uniformly applied and, like their `academic' counterparts, put too much emphasis on (quickly outdated) knowledge of rules and procedures as opposed to generic skills. There is a pressing need to rethink these standards, and the body to do it will need members with both substantial and varied experience and expertise in legal education and training.

[In relation to] the aforementioned Priestley 11 ... any new standards must (a) move away from the traditional preoccupation with stipulating areas of knowledge as opposed to areas of competence; and (b) reflect the realities of the kinds of work which lawyers actually perform, including of course methods of dispute resolution other than litigation. [79]

2.66 Professor Stewart does, however, agree with the Consultative Committee's approach to the limited extent that the establishment of a national council by way of an inter-governmental agreement would be desirable.

It is possible (indeed I would say sensible) to envisage a division of responsibility whereby the proposed Council formulated the necessary standards and the local admitting authorities applied them, retaining responsibility for accrediting programmes and determining the suitability of individual applicants for admission. Advice given to the National Advisory Committee on Legal Education and Professional Admission, which essentially adopted this model, suggested that the States and Territories could conclude a formal agreement with the Commonwealth both to establish the proposed national body and to implement its recommendations. The value of proceeding by inter-governmental agreement would be that the new system could be implemented without any need to wait for legislation in each jurisdiction, while ensuring that the new national standards were actually adopted. [80]

The extraordinary growth in the number of law schools since the Pearce Report and the Dawkins reforms -- 16 new law schools in a decade -- has produced competition and the desire for a distinct identity. As a result we have seen greater diversity in the nature of the law degree with conspicuous features being a stronger vocational emphasis, a broader range of combined degree programs, institutional emphasis upon particular areas of law, growth in clinical legal education programs, more skills training and genuine attempts to integrate both academic and practical training, as well as education in law and related disciplines.
Our conservatism and complacency, which are fuelled in large part by high student demand for our courses and high employer demand for our graduates, coupled with the low funding of law compared to other disciplines, have meant that we have probably paid less attention to the nature of our courses than our colleagues in many other fields.

Until we wrestle control of the content of the law degree away from the judiciary and establish a working partnership with all relevant stakeholders innovation will be stifled. We would do well to remember the exhortation of ... a decade ago, that what is needed [in Australia] is [81]

a legal education that is both far more theoretical and more practical than is presently envisioned anywhere in the Anglo-American legal world. Such education will find real legal theory and clinical legal education central to legal study. [82]

2.68 Professor Ralph Simmonds, Dean of Law at Murdoch University and another former convenor of CALD, submitted that a national coordinating body (such as ACOLE) would be desirable to undertake research towards the development of `a world class legal education system' for Australia, but it should not itself be a national accreditation authority for legal education providers. Rather, this body should supplement the work done by the existing State and Territory admitting authorities. [83]

2.69 By way of contrast, the submission from the Law Council reaffirmed its commitment to the 1997 joint proposal with the Consultative Committee which was rejected by SCAG.

The Law Council also supports the establishment of an Australian Council on Legal Education or similar body so long as it has the functions and role as proposed by the Law Council with its National Appraisal Council.

The Law Council does not support the establishment of an advisory body, to be known as the Australian Council on Legal Education, under the control of the federal Attorney-General.

The Law Council does support the establishment of a determinative body on legal education and training. In a joint submission in 1997 to the Standing Committee of Attorneys-General, the Law Council and the Priestley Committee proposed the establishment of a National Appraisal Council.

Although the joint proposal was rejected by SCAG, the Law Council remains committed to the establishment of the National Appraisal Council or similar body which has more than an advisory role.

The Commission's proposal does not acknowledge the necessity for developing and applying standards for the admission of overseas applicants. With the development of the national legal services market in Australia, it is essential that consistent standards be applied throughout Australia to ensure that foreign qualified lawyers are not able to be admitted in the jurisdiction with the least demanding admission standards and then be able to be admitted into every other jurisdiction, through the mutual recognition scheme.

It is essential that a national body undertakes some form of accreditation of tertiary law school courses in a consistent and objective manner to ensure that graduates completing different university courses are not able to be admitted throughout Australia by first being admitted in the jurisdiction which has the least demanding admission standards. A body such as the National Appraisal Council would set and enforce rules regarding accreditation to ensure high standards throughout Australia. ...

In summary, the Law Council and Priestley Committee proposal for a National Appraisal Council goes much further than the Commission's proposal for an Australian Council on Legal Education. The Law Council recognises that an overriding body is needed to set rules, and not be merely an advisory body. If there is no such central body with the authority to set and enforce rules, the current situation, which is sought to be remedied, namely a fragmented and inefficient system, will be perpetuated. [84]

2.70 The submission of the Federal Court, while supporting the Consultative Committee's approach, noted the need for greater cooperation between legal academics and the profession in ensuring high and appropriate standards of education for intending practitioners.

The problems dealt with [in the relevant sections of DP 62] are not new, although, for a number of reasons some may now be more serious or more complex. Among the reasons are (i) the dramatic, and questionably desirable increase in the number of Law Schools over the last decade with the corresponding concern as to possible deficiencies in the quality of academic training that may be being provided in some Schools; (ii) the increasing number of university law students who do not intend to enter professional practice; and (iii) the abandonment in some, but not all, jurisdictions of the system of articles as a means of acquiring recognised professional legal training for admission. [85]

2.71 After referring to the Council of Chief Justices-endorsed `Academic Requirements for Admission' (the Priestley 11) and the `Practical Legal Training Requirements' (the Priestley 12), the Federal Court raised a number of questions about the future of legal education in Australia.

(i) To what extent should 'practice skills' related subjects be either integrated into mainstream law school curricula without the assurance of appropriate and effective participation in that teaching by legal practitioners or be kept in the province of the profession without the assurance of appropriate and effective academic participation? This is an area where cooperation between the profession and universities seems desirable. These comments are made for the purpose of highlighting that significant aspects of practice skills are themselves the subject of academic study and expertise; practitioners are not, as of course, effective teachers; and there are aspects of skills training more likely to be more effectively provided in some cases by practitioners, and in others by academics and this is irrespective of whether the course in question is being provided by a university.

(ii) To what extent will devolution of such teaching to undergraduate education crowd law courses which are already under stress? ... Law school curricula and teaching presently are under a great deal of pressure, largely (though not exclusively) because of the demands made by the federal government. To prescribe additional skills courses in the LLB degree as de facto prerequisites for admission could well be at the expense of the analytical and conceptual bases of [a] law course. This would be a real cause of concern.

(iii) Who is to finance additional skills training? If such training is devolved to universities without financial supplementation, significant objections could be made to it. This funding question cannot be taken lightly, given the current plight of law schools.

... Why, instead of setting up such a body [ACOLE], should not the 'Priestley Committee' be further evolved and enhanced for the purpose. [86]

2.72 The submission from the law firm Freehill Hollingdale & Page supported a national body.

[DP 62] makes a cogent case for the establishment of an Australian Council on Legal Education which would be charged with developing model standards for legal education and training for lawyers and other key participants in the justice system. The rapid expansion of legal education imposes stress on institutions and academics who, in the context of dwindling resources, are barely able to discharge their immediate task of dealing with the increasing numbers of students. They are certainly not able to reflect in any sustained way on the future development of legal education. Nor are they able to see clearly the effect of the compromises which inevitably they have to make in these circumstances.

Therefore we support proposal 3.1. In addition to the arguments put forward by the Commission we stress the following advantages:

1. In tight economic times when, as the Report indicates, legal education is being run on the cheap, the standards promulgated by an independent and respected body would give law faculties and other teaching institutions some ammunition to use against their own institutions and would give the institutions some ammunition to use against governments and funding authorities.
2. There is a tendency for legal education to be merely reactive or haphazard. The competing demands for strictly legalistic education which concentrates on `black letter' law training and for a theoretical and policy oriented approach which ignores the need for students to acquire practical skills and a substratum of essential knowledge leads almost inexorably to mediocrity. An independent and respected body may be able to ameliorate this tendency. [87]

2.73 Philip Greenwood of the Sydney Bar, who has a long involvement with legal education, suggested that such a Council would have difficulty in facilitating change -- `which is really its central role' -- unless its structure and operation were different from the usual models. Greenwood suggested that the selection of members at its inception would be critical to the success of the Council, both in terms of the quality of its work and its acceptance. Greenwood shared the Commission's concerns about a body comprised largely of organisational representatives.

With some exceptions, the approach of inviting delegates seems to ensure that very little occurs. It is just not possible for every organisation to be `represented' on such a Council. It is very difficult to find a way to appoint the members of this Council so as to ensure that the members will be well qualified and well respected as well as willing and able to get across the broad issues and participate in wide ranging discussions, leading to a consensus and recommendations. I suspect you will need a tactful, hard working visionary who can enlist support in a variety of different disciplines within and beyond the legal education family. ... The operation of the Council would need to be extremely flexible to avoid it becoming hide bound with formalities and paper work. It will need to be looking at the big picture. [88]

The Commission's preferred approach

2.74 As the foregoing material suggests, there is a disjunction between the prevailing academic view and that of the profession and the judiciary (as represented by the Law Council and the Consultative Committee). Legal educators would welcome a national authority, but want to see that it has a significant representation of academics and a reformist agenda (which includes replacement of `the Priestley 11' with a better conceived and more appropriate set of standards).

2.75 It is disappointing that the relationship between the legal profession and the legal academy -- which, in 1987, the Pearce report described as `uneasy', [89] and the law deans said `contains an element of tension' [90] -- has not been advanced by this time, and that a more consultative and respectful approach has not yet developed. [91] For the same array of reasons that SCAG rejected it, the Commission does not favour, in its present form, the proposal made by the Consultative Committee and the Law Council for a National Appraisal Council.

2.76 The Commission believes that, in the medium to long term, the public interest may be better served by the establishment of a body which sets (appropriately high) national minimum standards for legal education. Once developed, such standards should be accorded great weight in determining whether a degree from a particular institution will be accepted for admission purposes. The formal auditing and accrediting process should remain at the State and Territory level. This would in no way imperil the emerging system of mutual recognition and uniform national admission. Admitting authorities surely should be able to trust each other to monitor effectively the standards of law schools within each jurisdiction, with automatic and reciprocal effect given to State and Territory accreditation. This would make for a far less cumbersome, protracted, expensive and intrusive system, would allow for greater participation and representation within each jurisdiction, and would accord with virtually all of the other regulatory processes in operation in respect of the legal profession in Australia.

2.77 However, the major stakeholders must work together constructively and develop a sense of commonality of interests. Until such time as this eventuates, and in order to promote conditions which might facilitate this cooperative approach, the Commission has replaced its proposal 3.1 (for an ACOLE) with a suite of recommendations, which involve

the encouragement of an emphasis upon legal ethics and high order professional skills, without derogating from the responsibility law schools have to provide students with a grounding in substantive law
the introduction of a regime for quality assurance in Australian law schools
another national discipline review, to update and build upon the Pearce report
the establishment of an Australian Academy of Law
an approach which permits diversity in the delivery of PLT programs and
ensuring the participation of practitioners in approved, high quality professional development programs.

Increased emphasis on broad professional skills development

2.78 As discussed in DP 62, [92] the traditional law school focus on developing analytical skills through a close reading of cases and statutes in subjects organised around bodies of substantive law is increasingly being supplemented by teaching [93] in areas of dispute resolution, [94] advocacy, fact finding, client interviewing (that is, communications), negotiation [95] and drafting -- all areas which also are replete with difficult ethical dilemmas for practising lawyers. This teaching need not be limited to separate subjects -- some of the best skills teaching occurs in context, within substantive units. [96] For example, the law of contracts provides opportunities for skills development in negotiation and drafting, and for contemplating the ethical considerations involved in negotiations. Teaching

good corporate lawyering, while not sufficient to ensure good corporate citizenship, can help equip our graduates to be effective not only at best-practice advising, planning and advocacy for corporate interests, but also at doing so reflectively and responsibly. [97]

2.79 The Commission is aware of the resource intensive nature of professional skills training, which generally requires `small group teaching' to be effective. Greater financial support from the profession, alumni and government is needed to make this more achievable. Nevertheless, it is apparent from university handbooks that most (if not all) Australian law schools already share some commitment to advancing this approach -- but much can and should be done. [98]

2.80 In order to assess progress in this area, law schools should make explicit the nature and extent of their skills development programs (whether as separate units, as modules within substantive units, or in clinical programs), and how they examine these skills.

2.81 In calling for greater attention to be paid to broad, generic professional skills development, the Commission does not seek to minimise the need for students to receive a solid grounding in core areas of substantive law, the historical organisation (and divisions) of the common law system, the language and key concepts of core areas of law, and the nature of the relationships as between the state, the courts and the individual. [99] As stated in DP 62, the Commission

does not wish to perpetuate a false polarity between substantive knowledge and professional skills. It is obviously important to provide law students with a basic grounding in the major areas of substantive law, especially `building block' areas such as contracts and public law, and to acquaint them with how these areas developed over time -- that is, to provide an appreciation of the common law method. Nor is it possible to teach legal professional skills effectively in a substantive vacuum, or in manner which does not promote intellectual analysis and reflection on law as an art and a social science as well as a technical or professional service. [100]

2.82 What the Commission does wish to see, however, is a move away from a solitary preoccupation with the detailed content of numerous bodies of substantive law, which is essentially the position taken by the `Priestley 11' requirements. [101] For one thing, this approach makes it difficult to agree upon a set of `core' areas of substantive law. There is little doubt that the core must include constitutional law, criminal law, contract, torts, and property law. Some generations ago administrative law was barely recognised and conveyancing was a staple of the profession. Some important and high profile areas -- such as family law, environmental law, taxation and trade practices -- are popular with students, but are rarely compulsory in law schools. Globalisation suggests that public international law and conflicts of law (private international law) could be seen as within the modern `core', but few law schools make these compulsory. [102] In the United Kingdom, a recent joint statement by the Law Society and Bar Association (awaiting the approval of the Lord Chancellor) emphasised the importance of intellectual lawyering skills, and listed only about a half-dozen `core areas of knowledge', including European Community Law. [103]

2.83 Second, a requirement that students must `master' (or least `know') large bodies of substantive law ignores the stark reality that this substance changes dramatically over time -- sometimes in a very short time. Where once it was possible to trace the slow and careful development of the common law, and identify with either the `bold' or `timorous' judges of the English superior courts, Justice Paul Finn has described Australians as `born to statutes'. [104] Justice Michael McHugh has noted that

[l]egislation is the cornerstone of the modern legal system. For a long period in the history of the Anglo-Australian legal system, the rules of the common law, as modified by the great system of equity jurisprudence, were the basic instruments of public and private law. But throughout this century, successive Parliaments have legislated to control more and more social and economic conduct. As a result, the rules of the common law and equity are constantly being modified by statute law. The growth of legislation appears to have reached almost exponential levels. However, the increase has not been so much in the number of Acts passed as in the length of legislation passed. [105]

2.84 Thus, a student who `masters' taxation law or environmental law or social security law, but does not then work in these areas for a time, would find the substance of the law almost unrecognisable a decade later; and a practitioner who relied significantly on what he or she learned in law school would soon, if unwillingly, become acquainted with the law of professional negligence.

2.85 Again, it is important to make clear that, properly conceived and executed, professional skills training should not be a narrow technical or vocational exercise. Rather, it should be fully informed by theory, devoted to the refinement of the high order intellectual skills of students, and calculated to inculcate a sense of ethical propriety, [106] and professional and social responsibility. [107] The Commission agrees with the view of the Lord Chancellor's Advisory Committee on Legal Education and Conduct in the United Kingdom that an undergraduate law degree course `should stand as an independent liberal education in the discipline of law, not tied to any specific vocation', and its warning that a good legal education should not be `highly instrumental' or `anti-intellectual'. [108]

2.86 In mandating requirements for legal education in Australia, surprisingly little regard has been paid to the policies, debates and experiences which are shaping education and training in other learned professions. Professor Stephen Leeder, Dean of Medicine at the University of Sydney, has suggested, [109] for example, that `common and important themes' have emerged in recent times with respect to medical education, with `the beginning of a substantial, Australia-wide discourse on the reform of medical education'. [110]

2.87 Leeder notes that surveys of medical practitioners indicate that they generally were happy with the way their own degree program gave them an `excellent grounding in the basic sciences', but they also believed that there were important matters which were missing from their education.

[They] identified communication skills most frequently, skills of critical appraisal of information and research including statistics, and inadequacies in the education methods used to teach [them]. Other strong themes were a perceived lack of integration of basic science with clinical practice, a lack of explicit teaching in regard to the method of problem-solving, no training for coping with the practicalities of practice management, and not enough on ethics and philosophy. [111]

2.88 In DP 62, [112] and later in this chapter, the Commission notes that the particular ability of judges to engage in self directed learning must be recognised in the design of judicial education programs. The very high quality of Australian law students, however, is a factor which receives too little consideration in the design of many legal education programs (both LLB and PLT). Despite the enormous growth in the number of law schools and the number of places available to law students, the almost insatiable demand for entry into law school has created a highly competitive environment in which virtually all law schools can select from within the top 10 per cent of the annual cohort of applicants, and the leading law schools select from within the top 1-2 per cent. [113]

2.89 Accompanied by a commitment to facilitating `lifelong learning' for professionals, Australian law schools might consider adoption of an underlying philosophy which holds that

[i]n a changing environment, the best preparation that a law school can give its graduates is one which promotes intellectual breadth, agility and curiosity; strong analytical and communication skills; and a (moral/ethical) sense of the role and purpose of lawyers in society. [114]

Recommendation 2. In addition to the study of core areas of substantive law, university legal education in Australia should involve the development of high level professional skills and a deep appreciation of ethical standards and professional responsibility.

Regular reviews of academic programs

2.90 As discussed above, the rapid growth in the number of law schools in Australia over the past decade has raised concerns in some quarters about quality assurance in legal education. Although there is no discussion of the increasing degree of accountability and quality assurance required of Australian universities in the proposal by the Consultative Committee and the Law Council for a National Appraisal Council, this area has developed considerably in recent years.

2.91 As a comprehensive World Bank study for the United Nations Educational Scientific and Cultural Organisation (UNESCO) of quality assurance in higher education by El-Khawas and others found

The issues have evolved over the years, however, from an initial questioning of whether new forms of quality assurance were needed to current debates on what are the more effective approaches to quality assurance. Many academic leaders criticized early approaches and defended academe's traditional methods for quality assurance even though they were largely internal and not transparent to external audiences. More recently, academics seem to have conceded that the pressures of mass higher education and financial constraints have changed the conditions of higher education sufficiently that formal, externally validated methods of quality control must be a central component of higher education systems. [115]

To be successful, such an effort requires collective action by universities and by governmental agencies, along with scholars in educational research. [116]

2.92 El-Khawas concluded that world's best practice in quality assurance in this sector requires the following core elements [117]

monitoring by semi-autonomous agencies
development of explicit standards and expectations
self study by the academic institution or unit
external review by visiting experts
written recommendations
a transparent public reporting process and
attention to both process (that is, capacity) and actual outcomes/results/achievements.

2.93 In the Commission's view, quality assurance concerns in relation to legal education may be met satisfactorily by measures which are being introduced by the federal government, so long as these comply with the core elements described above. On 18 October 1999, federal Cabinet approved the introduction of new quality assurance processes in relation to all higher education institutions which receive (or seek) financial support from the federal government. Announcing the new scheme, the Minister for Education, Training and Youth Affairs, Dr David Kemp, averted to the rapidly changing environment and noted the weaknesses in the existing system.

While the current system has served us well, it has focused on inputs and has tended to become preoccupied with process at the expense of analysing outcomes. Its weaknesses also include the facts that:

universities have complete discretion over the rigour of the process;
there is no external review of the quality assurance processes or standards;
there is no way to compare degrees between institutions or to compare Australian standards with those of other countries; and
there is a lack of coherence in policies and procedures for the accreditation of institutions and courses.

The need to strengthen the current system is evident and initiatives have emerged from the Commonwealth, the States and Territories and the sector itself. [118]

2.94 What is proposed is the establishment of an independent `Australian University Quality Agency' [119] to conduct periodic (at least five yearly) quality audits of academic institutions as well as accreditation authorities.

2.95 The Commission believes that this process will provide an important framework for quality assurance in university education generally; [120] however, as it will operate on an institution wide basis, it must encompass, or be supplemented by, a review process which is specific to law schools.

Recommendation 3. All university law schools should engage in an on-going quality assurance auditing process, which includes an independent review of academic programs at least once every five years.

Another national discipline review of legal education

2.96 Almost every submission to the Commission pointed to the remarkable changes in Australian legal education since the 1987 Pearce report. The study by McInnis and Marginson on the important and beneficial effects of that last national discipline review indicate that the time may be right for DETYA to consider conducting another exercise to assess the new environment and establish new benchmarks. According to McInnis and Marginson,

[t]he Pearce Committee's work suggests that discipline reviews are able to play a significant role in securing improvement in the work of individual schools, and in building a culture of reflection and evaluation within and between higher education institutions ...

An example is the way in which, in the wake of the Pearce Report, law schools suddenly began to define and articulate their aims and objectives. (One of the spin-offs from this change was that it provided a stronger basis for evaluation and accountability mechanisms). Discipline reviews should not become absorbed in the process of gathering detailed data about daily operations. They are a unique opportunity to uncover the bedrock questions, such as those concerning the nature and direction of the discipline ... the process of review can position the discipline in an outward facing stance bringing it under pressure to satisfy its external clients -- students, employers, government -- as well as the logic of its own development, and the working needs of academics in the discipline ... [121]

2.97 The contention that discipline reviews foster introspection and prompt the articulation of aims and objectives appears apt: the last time the Council of Australian Law Deans formulated a broad statement on the role of law schools and the aim of a legal education (as opposed to responding to particular concerns and developing particular initiatives) was in its 1986 submission to the Pearce Committee.

2.98 McInnis and Marginson correctly point out that Quality Assurance (QA) mechanisms and discipline reviews perform different functions, so that the QA process encouraged in the previous recommendation does not necessarily displace the need for, or value of, periodic discipline reviews. While QA is `designed to encourage ongoing mechanisms of self-evaluation', discipline reviews `are a one-off mechanism designed to illuminate the content of the discipline concerned'. QA is `primarily about management', while a review is `concerned also (and mostly primarily) about teaching and research'. [122]

2.99 Following on from the work of the Pearce Committee, it is suggested that another discipline review need not be as lengthy, go over the same ground, collect the same data, or be as expensive, and `would benefit from the lessons of the Pearce experience'. [123]

2.100 The Commission agrees that another national discipline review of legal education may be timely, commencing in 2001, or as soon as is practicable, and focussing on such matters as

the impact on diversity and quality of the dramatic growth in law school numbers
the balance in law school curricula between liberal and professional education
the teaching of professional skills (including legal ethics and professional responsibility), and the mounting of clinical programs
the trend towards location of PLT programs in law schools
the resource base for law schools and law libraries.

2.101 The Commission agrees that such a review could be managed in less time and at less expense than the Pearce review, since it could build upon the work already done by the Pearce Committee (and other external committees of review of individual law school programs) rely upon better data collection systems now in place in the tertiary education sector, and make use of the personnel and infrastructure from existing expert, independent bodies, such as the Australian Universities Teaching Committee [124] and the Centre for Legal Education.

Recommendation 4. The Commonwealth Department of Education, Training and Youth Affairs (DETYA) should give serious consideration to commissioning another national discipline review of legal education in Australia, commencing as soon as practicable.

Accepting a diversity of approaches to practical legal training

2.102 As noted in DP 62, [125] it was only in the 1970s in Australia that there was a trend away from the long enduring system of `articled clerkships'

as the main method of providing post university practical legal training, in favour of a model recommended by reports here and in the United Kingdom: that is, six to nine months of second stage professional education in an institutional setting followed by a period of in service training, under supervision, with a restricted practising certificate. [126] While the theory behind articles, as with other apprenticeship training, was that intending lawyers would best learn skills, practices and procedures on the job, the reality often involved poor supervision, menial tasks, and limited exposure to a range of different types of work. The shift `had as much to do with concern over the inadequacy of the articles system as it did with the belief in the efficacy of formal, institutional training'. [127]

2.103 The PLT phase of legal education is still in considerable flux, with a recent entry into this field by university law schools -- including some offering clinical approaches (see para 2.9-2.10 above); substantial modifications to the format and content of PLT programs; [128] and the beginning of diversity as to modes of delivery -- with a number of IT supported distance learning programs already in place. The PLT requirements also vary considerably in Australia from jurisdiction to jurisdiction, and range from two years of articles to sliding combinations of articles, work experience, and institutional training. [129] Although there is a general view that there needs to be a PLT `bridge' between graduation from law school and entering practice, consensus is more elusive when it comes to making clearer what exactly it is that reasonably can be expected and achieved from this part of the education process.

2.104 A recent Australia-United Kingdom `virtual conference' on legal education also highlighted the uncertainty of leading figures in PLT about the best way forward. [130] Professor Avrom Sherr, Woolf Professor of Legal Education at the Institute of Advanced Legal Studies, wondered whether the move to PLT (the legal practice course in the United Kingdom) meant that `we may have lost what was good about apprenticeship -- "the fire", the immediacy of personal experience?' [131] Ms Audrey Blunden, National Director of Legal Education for Malleson Stephen Jaques, forecast that `increasingly, we will see inhouse PLT offered by the large law firms, customised to their own needs'. Similarly, Mr Tony King, Director of Education and Training at Clifford Chance, commented that `timing is critical -- delivering the education and training when the person is ready for it, needs it, and values it', and that partners had begun again to appreciate that it was important to undertake a mentoring role to make this work. King noted that

The best development comes from handling tasks for clients. The workflow in many law firms means it is not easy to ensure young lawyers progress at a steady and sensible pace up the learning curve. There is a tension between providing young lawyers with appropriately broad-ranging development opportunities and ensuring they are as profitable as possible to enable the firm to get a return on its investment in them. [132]

2.105 Mr Andy Harvey, Director of Course Design at the College of Law (England and Wales), also highlighted the difficulty in getting the balance right at this phase between providing further teaching of substantive law (that is, identifying what level of knowledge of the law can be assumed) and offering training aimed at developing practice skills. Harvey stated that when the modern PLT course was first set up in 1992, the Law Society looked for at least 25% of the course to be devoted to the prescribed skills (practical legal research; writing and drafting; interviewing and advising; and advocacy). However, `current feedback from practitioners indicates a desire for emphasis on the underlying law (`black letter law') and on the particular skills of Practical Legal Research and Legal Writing and Drafting'. [133]

2.106 Two sets of standards have been developed in Australia: the `Practical Legal Training Requirements' (the Priestley 12) endorsed by the Council of Chief Justices, and `the Standards for the Vocational Preparation of Australian Legal Practitioners' (the APLEC Prescription). The Australasian Professional Legal Education Council (APLEC) is comprised of all PLT providers (with institutional and staff membership) in Australia and New Zealand. After a period of consultation and development, APLEC approved a common statement of the content and learning outcomes in PLT programs, which is not enforceable, but has been highly influential. The APLEC Prescription includes the following nine fields of training (the APLEC 9)

criminal practice
family practice
civil litigation
wills and estate practice
business law and practice
property practice
professional skills
work management and business skills, and
ethics and professional responsibility.

2.107 The general view appears to be that the APLEC 9 are conceptually superior and easier to work in practice than the Priestley 12. Although the Priestley 11 requirements concerning law schools have been accepted and are applied by all State and Territory admitting authorities, the `Priestley 12' requirements concerning PLT have not. APLEC recently has engaged a consultant to restate the APLEC Prescription in terms of entry level standards, `outcomes and competencies', as recommended for professional certification by the National Board for Employment, Education and Training (NBEET). The Consultative Committee's submission states that the Committee and APLEC, `with the encouragement of the Council of Chief Justices and of SCAG, are now jointly engaged in an effort to produce a single reformulation of the APLEC 9 and Priestley 12 which will include competency standards', with the `revised uniform standard' expected to be completed in 2000. [134]

2.108 In April 1998, SCAG released a discussion paper reviewing the basis upon which admission to legal practice should be granted in Australia. One issue concerned the post graduation PLT training requirements. The paper also proposed a model for dealing with legal education, training and admission. [135] The SCAG approach was concerned primarily with what is required for admission, while APLEC has emphasised the skills and knowledge needed for practice.

2.109 The submission from the Australian Law Students' Association (ALSA) argued in favour of a diversity of modes and providers, bound by a set of national minimum competency standards.

A prescriptive standardisation approach to pre-admissions training does not recognise the diversity of Australian law graduates' career destinations. Apart from any pedagogical disadvantages, the reduction in methods of admission is fundamentally uncompetitive. Furthermore, it will detrimentally impact upon graduates who wish to gain accreditation to practise, yet move into an alternative career path thereafter. For example, such graduates may choose PLT courses which allow for a shorter period of practical experience as opposed to the articles of clerkship model. In addition, as post-graduate PLT courses are up-front full-fee paying, the availability of integrated undergraduate PLT programs or articles of clerkship as options to gaining accreditation to practise may go some way towards ensuring equity of access to a career in the legal profession.

The debate pertaining to methods of gaining accreditation to practise is concerned principally with ensuring that prospective legal practitioners are trained to a sufficient standard. To achieve this goal, rather than to standardise pre-admissions training and methods, a national body such as ACOLE should concentrate upon standards formulation. This can accommodate the current diverse means of gaining the necessary training for entry into legal practice, which include integrated PLT programs, articles of clerkship and post-graduate PLT programs. To this end, ALSA proposes the creation of national minimum competency standards. The aim of these standards should be to maintain the current diversity of accreditation methods, whilst also ensuring that a consistent standard of pre-admission training for graduates across Australia is attained. Furthermore, it will increase competition amongst PLT providers including universities, PLT institutions and employers. This will in turn increase educational standards. [136]

2.110 The Law Council's submission [137] was critical of the Commission's reference to the entry of university law schools into the PLT field, [138] and the possibility that down the track `an expansion of the role of university PLT courses might obviate the need for a separate PLT stage'. [139] The Law Council cited the 1987 Pearce report and the 1983 Clarkson report in Western Australia, [140] which were `critical of the nexus between PLT and universities', fearing that this would lead to undesirable competition for limited resources and a conflict of educational objectives.

2.111 These are valid concerns and, for the foreseeable future, most university law schools will opt to steer clear of PLT. However, as discussed elsewhere in this chapter, the system has changed dramatically since the time of the Pearce and Clarkson Reports. Among other things, the number of law schools has greatly increased, the basis for Commonwealth funding of undergraduate and postgraduate education has changed radically, professional associations have become alarmed at the cost of providing PLT programs for the increasing numbers, [141] clinical education has expanded somewhat (although not nearly enough see para 2.19), and quite a few university law schools already have established PLT programs -- some of them integrated, some of them `add-on' -- which are approved for admission purposes by the relevant State admitting authorities.

2.112 As noted above, the motivation for this trend is mixed, encompassing in relative degrees an interest in experimenting with new pedagogical approaches; budgetary and marketing considerations (that is, the attraction of government funded or fee paying student load); and equity concerns about the increasing demands placed upon students to pay HECS and upfront fees. [142]

2.113 Funding policies and practices may yet change in this area. As the Director of the NSW College of Law's Professional Program, Ms Kay Smith, has commented, the Stanley report [143] on postgraduate education

seems to make it quite clear that the public purse ought not to be burdened with costs which are properly to be interpreted as compliance costs for the profession or industries and so even in the vocationally oriented LLB programs we might expect over time escalating pressure on the practical training dollar. [144]

2.114 As the foregoing discussion suggests, questions about the best venue for PLT have been overtaken by the need to clarify the goals, improve the content and develop a set of national minimum standards and competencies.

Recommendation 5. While ensuring that specified standards of minimum competency are achieved, admitting authorities should render practical legal training requirements sufficiently flexible to permit a diversity of approaches and delivery modes.

Towards an Australian Academy of Law

2.115 Until about the early 1970s, persons identifying themselves as practising lawyers almost invariably would have been members of a law society or a bar association, and would have felt that their professional interests were being catered for, and represented externally, by these associations. With judicial appointment coming almost exclusively from the ranks of the bar, a special relationship also existed between the bench and the bar. Most `students-at-law' already worked in the profession as articled clerks, interacted regularly with practitioners (across the solicitor-barrister divide), and received mentoring from senior (`master') practitioners. Students organised their studies around their work responsibilities, with classes held mainly in the evening and taught mainly by practitioners, and with only a small core of full-time academics in the one law school located in each capital city. Law graduates mostly went into the profession, and practised as solicitors or barristers. The organisation of the profession lent itself to a natural hierarchy of judges, barristers and solicitors.

2.116 Without overly romanticising the previous situation, the size and structure of the profession as it then existed promoted a greater degree of cohesion and solidarity. That position has changed very dramatically over the past three decades. [145] The number of lawyers has grown rapidly (much faster than the population at large); specialisation is now a feature of practice, there are very large national and international firms (which did not exist until the late 1970s); the number of law schools has nearly quintupled, and the academy mainly comprised of full time academics has a much more attenuated relationship with the practising profession. Law graduates are as likely to consider a career in finance, journalism, banking or management consulting as in law; [146] there is now a wider choice of ways in which to `practise law'. [147] Membership in professional associations now tends to be voluntary, and in some jurisdictions there is a choice of associations. Appointment to the judiciary is no longer the exclusive preserve of the bar. Importantly, the market for legal services is now far more competitive, with non-lawyers doing work previously reserved for lawyers, law firms developing a more `business-like' orientation and structure, and firms operating nationally and (often) internationally.

2.117 This growth and fragmentation presents serious challenges to the maintenance of a coherent professional identity, and render difficult the maintenance of traditional collegiate approaches. Without positive action the single `legal profession' could become a multiplicity of `legal occupations', none of which see itself as part of a larger whole. [148]

2.118 In the Commission's view, there is a need for an institution which can draw together the various strands of the legal community to facilitate effective intellectual interchange of discussion and research of issues of concern, [149] and nurture coalitions of interest. Such an institution should have a special focus on issues of professionalism (including ethics) and professional identity, and on education and training.

2.119 No institution currently exists to fill this need -- or which readily could be adapted to do so. A significant proportion of legal academics in Australia (as well as in New Zealand and Papua New Guinea) belong to the Australasian Law Teachers Association (ALTA), and law schools have institutional membership in CALD -- but neither includes judges, students or practitioners. The Judicial Conference of Australia (JCA) is essentially a judge-only body. The Australian Law Students' Association (ALSA) has only student members. Law societies and bar associations are State and Territory based, and have practitioner-only membership. The Law Council is the peak organisation for those professional associations -- although even here the Law Society of New South Wales has threatened to withdraw and establish a separate organisation representing only solicitors. [150] The Australian Institute of Judicial Administration (AIJA) probably comes closest, as a broadly based body, whose membership includes a significant number of judges, magistrates and practitioners -- but only a limited number of academics, and no students. The AIJA's focus on court administration and judicial education, while important, is narrower than the brief suggested for an Australian Academy of Law.

2.120 There are a variety of possible models and precedents for such a body. Four learned societies already exist in Australia, namely the Academy of the Social Sciences in Australia (ASSA), the Australian Academy of Humanities (AAH), the Australian Academy of Science (AAS), and the Academy of Technological Sciences and Engineering (ATSE). The four academies operate as autonomous, non-governmental organisations, and cooperate through the National Academies Forum, formed in 1995. Funding comes from subscriptions and a modest annual subvention from the federal government. Only ASSA has any significant interest in law, with about 20 Fellows with legal backgrounds, out of a total membership of around 350. [151]

2.121 CALD has been considering a proposal developed by Professor David Barker, Dean of Law at the University of Technology, Sydney, for the establishment of an Australian Academy of Law which `could increase co-operation between the judiciary, professional legal associations, CALD and ALTA'. [152]

2.122 According to the proposal, [153] the suggested membership of 300 should be `selected on the basis of professional achievement and demonstrated interest in the improvement of the law'. Ex officio membership would be granted for Chief Justices, Attorneys-General, Solicitors-General, heads of law reform commissions, the President of the Law Council, and law deans. The suggested objects would include the following.

To promote excellence in and encourage the advancement of legal practice in Australia.
To promote collegiality among members of the judiciary, legal practitioners and law teachers.
To promote excellence in legal research and the publication of contributions to legal knowledge.
To promote the professional development of members of the legal profession.
To promote views relating to legal reform to Government, the community and other professions.
To promote high standards of ethical conduct within the legal profession.

2.123 The working model for the CALD proposal is the American Law Institute, which is best known for its exhaustive research and consultation work and the production of the Restatement of American Law series. While there are some features of this model which are attractive, and adaptable to Australian circumstances, the proposed membership structure (as well as the focus on codification type law reform) would not suit the imperative for a more comprehensive and collegially minded body.

2.124 Concern by leading figures in the Republic of Singapore with respect to collegiality, legal education, and the ethical standards of the profession led to the establishment of the Singapore Academy of Law [154] in 1988.

It was then observed that in the United Kingdom, there were Inns of Court which also served as places for judges, lawyers, academics and law students to gather together and share their experiences with one another. Such institutions had similarly enabled junior lawyers to socialise with senior lawyers and to learn from the latter's rich experiences. As such facilities were not available in Singapore, the [Singapore Academy of Law Act] was passed to create the Academy as an institution for continuing legal education and to take up the role of providing a place where judges, lawyers, academics and law students could meet informally with one another. It is patterned after the Inns of Court, but unlike the Inns it brings together under one umbrella the Judiciary, the Bar, the Academy and the Government Legal Service. The Supreme Court Judges and Senior Counsel as well as other distinguished persons are fellows of the Academy. [155]

2.125 Section 4 of the Singapore Academy of Law Act sets out the Academy's functions.

To promote and maintain high standards of conduct and learning of the members of the legal profession in Singapore and the standing of the profession in the region and elsewhere.
To promote the advancement and dissemination of knowledge of the laws and the legal system.
To promote legal research and scholarship and the reform and development of the law.
To provide continuing legal education for its members.
To provide for the training, education and examination by the Academy or by any other body, of persons intending to practise the profession of law.
To provide the facilities for the social interaction of its members.
To promote good relations and social interaction amongst members and between members and law students and persons concerned in the administration of law and justice in Singapore.

2.126 On the basis that its broadly inclusive membership `put the Academy ... in a strategic position to strike a balance between the competing interests of its members and the public', [156] the Act was amended in 1995 to give the Academy additional responsibilities for the appointment of notaries public and commissioners for oaths; and to undertake activities, projects and consultancies relating to `the study, development and operation of laws and legal systems and the facilities, information technology and infrastructure in support thereof'. Thus, the Academy now serves as the umbrella organisation which houses the Singapore Law Reform Committee, chaired by a Supreme Court judge.

2.127 The Singapore Academy of Law levies annual membership subscriptions, which are staged according to seniority (and may be waived in appropriate cases), and provide the organisation with a funding base for its activities. Income also is generated by fees for CLE courses, conferences, and publications.

2.128 In the Commission's view, the Singapore model provides a point of departure for customising an institution which would best suit the interests of Australia. The precise nature, composition and role of an Australian Academy of Law is one for the major stakeholders to determine, following consultation. It should aim to develop communication and collegiality across the profession. Although it is not the Commission's intention that an Academy of Law be established in the first instance as a body with appraisal or accreditation powers in respect of legal education providers, it would be an appropriate body to conduct the research and undertake the consultation necessary to develop acceptable national minimum standards.

Recommendation 6. The federal Attorney-General should facilitate a process bringing together the major stakeholders (including the Council of Chief Justices, the Law Council of Australia, the Council of Australian Law Deans, the Australasian Professional Legal Education Council, and the Australian Law Students Association) to establish an Australian Academy of Law. The Academy would serve as a means of involving all members of the legal profession -- students, practitioners, academics and judges -- in promoting high standards of learning and conduct and appropriate collegiality across the profession.

Professional development as an essential aspect of professionalism

2.129 Mandatory continuing legal education (MCLE) programs were first introduced in the United States in 1975, and most states in the United States typically specify that a practitioner must spend a certain number of hours (generally 8-12) per year (sometimes averaged over three years) undertaking approved courses in order to retain practice rights. Following a recent challenge to the constitutionality of California's MCLE requirements -- particularly the exemption for retired judges, elected state officials, and law professors -- the California Supreme Court upheld the rules by a 5-2 majority. Ten days later, California Governor Gray Davis signed into legislation a bill which: reduced the education requirement from 36 to 25 hours over three years, but mandated that four of these hours involve instruction in professional ethics; and removed the exemption for retired judges. It was expressly part of the Supreme Court's finding that the exemption for retired judges did not violate the equal protection clause of the State Constitution. [157]

2.130 In Australia, the Law Society of New South Wales adopted the concept of MCLE in principle in 1985, and formalised this in 1986. Solicitors in New South Wales must now complete 10 hours of accredited CLE training per year in order to maintain a current practising certificate. While participation in CLE activities is encouraged by all legal professional associations in Australia, and may be required for certified specialists, [158] no other State or territory has followed the New South Wales lead in establishing general MCLE requirements for practitioners. [159]

2.131 Even in New South Wales, the Legal Profession Advisory Council [160] conducted a review of MCLE in 1996, and its report to the Attorney-General accepted the Bar Association's arguments that the MCLE requirements not be extended to barristers. [161] Essentially, the arguments put and accepted were that barristers presenting cases in court required far more detailed knowledge of the specific area of law than is typically available through CLE courses, and barristers who specialised in a particular area were obliged to maintain an exhaustive knowledge of that area and would gain little from MCLE. These arguments seem to go more to the generalist-specialist divide than to the solicitor-barrister divide. It is not clear, for example, why the same logic should not apply to a highly specialised partner in a large firm, or in a `boutique' firm of solicitors.

2.132 While accepting the benefits of specialist accreditation, the profession properly has resisted any move to restrict practice in some areas to certified specialists or to limit specialists to their own fields. [162] In the view of the Commission, the need for generalist lawyers to engage in lifelong learning is no less pressing than for specialists, and specialists will benefit from keeping abreast of important developments in the law outside their own field.

2.133 A more limited, but nevertheless important, form of compulsory education is found in some jurisdictions in relation to practice management and risk management. For example, New South Wales and Queensland require practice management training as a condition of receiving an unrestricted practising certificate for new principals and, as a condition of obtaining compulsory professional indemnity insurance, all solicitors in Western Australia are required to undertake 2 to 4 hours of risk management education per year. [163] A number of jurisdictions overseas, such as British Columbia, also use the mechanism of discounting premiums for professional indemnity insurance based on CLE attendance.

2.134 As noted in DP 62, whether compulsory or not, CLE programs are nevertheless widespread.

The earliest CLE providers in Australia tended to be university law schools. This is now a very crowded field. Other CLE course providers include law societies and bar associations, PLT institutions, government departments and agencies, specialist legal interest groups, and private companies. Particularly since the advent of MCLE requirements in New South Wales, large law firms have begun to operate their own `in-house' programs -- a practice which has attracted special scrutiny in the US, but has not excited particular concern in Australia. [164]

2.135 The Commission has noted that there are valid criticisms of the design and execution of some CLE programs, [165] and concedes that there is no significant research base to establish conclusively the beneficial effects of CLE.

While surveys of lawyers who have taken CLE programs indicate widespread support for this scheme and the belief that such programs do improve competence, there has yet to be a study which provides clear evidence that this is the case. [166]

Thus, mandating CLE as an aid to professional competence involves something of an `act of faith'. Nevertheless, the Commission stated in DP 62 that

Continuing legal education programs are said to contribute to professional competence by allowing lawyers to keep up to date in their own and related fields, by refreshing and expanding substantive knowledge and professional skills, and by aiding specialisation. [167]

In the Commission's view, properly conceived and implemented CLE programs should play an important role in maintaining high professional standards and assuring public confidence in the competence of the legal profession and the efficacy of the justice system. For this reason, we suggest that all States and Territories adopt mandatory CLE (MCLE) requirements for all practising lawyers. [168]

The Commission also believes strongly that CLE programs should be more firmly embedded within the regulatory system and more widely utilised by disciplinary authorities as a sanction, with the aim of remedying poor professional practice. [169]

[O]ne of the traditional hallmarks of a profession is a commitment to `lifelong learning'. In the case of lawyers there is an expectation that lawyers will engage in continuing legal education as a means of being able to continue being deserving of their so-called professional privileges, including protection from competition from non-legal professionals. [171]

2.137 In its recent review of the civil and criminal justice systems in its state, the Law Reform Commission of Western Australia (LRCWA) found that

Legal ethics currently have only a minor place in the initial and continuing education of lawyers, although the review of continuing legal education proposed in the Law Society of Western Australia's strategic plan for 1998-2000 illustrates the increased emphasis on continuing legal education within the profession itself. Significantly, in light of recommendations made throughout this Report, continuing legal education can also serve the important function of informing lawyers of their changing professional and ethical obligations. [172]

2.138 The LRCWA recommended that

440. Legal ethics training should be required for students to obtain undergraduate law degrees. Attendance at legal ethics continuing legal education courses also should be required for practitioners in order to renew practise certificates.

441. A program of mandatory Continuing Legal Education should be established in Western Australia. Accredited providers should be obliged to include coursework on legal ethics and legal procedures.

2.139 The LRCWA also supported the establishment of an Australian Journal of Professional Legal Ethics, which `would be a focus for discussion about best practice, current topics in legal ethics and reflective critiques of the subject'. [173] The LRCWA stated that it is essential that the journal is seen as primarily for the benefit of practitioners [174] . Alternatively, the LRCWA suggested that syndicated articles run in all of the periodicals produced by the professional associations, or that a regular column or section devoted to the subject, be established in the Australian Law Journal.

2.140 The Law Council's submission [175] affirms its `strong support for Continuing Legal Education' and endorses the Commission's statement about CLE playing `an important role in maintaining high professional standards and assuring public confidence in the competence of the legal profession and the efficacy of the justice system'. [176] However, the Law Council disagreed with the suggestion that all States and Territories should adopt MCLE requirements for all practising lawyers, [177] reiterating the position it took in its submission in response to IP 21 -- which opposed MCLE, particularly for barristers. [178]

2.141 In a recent discussion paper, a Law Society of New South Wales Task Force summarised the pedagogical arguments for and against MCLE. [179] The positive case was that MCLE

fosters a profession-wide habit of continuing learning
increases the quantity (and quality) of education programs available
focuses on needs rather than wants and
requires the `rotten apples' to participate in education programs.

The arguments against MCLE are that

there is no evidence linking compliance with competence
it discourages the competent
it is not consistent with `professionalism'
it is not consistent with adult learning principles and
the minimalist requirements (attendance, but not assessment) lack credibility.

2.142 The Task Force acknowledged the Commission's view that an MCLE scheme should be seen as one of the profession's responses to increased public scrutiny and demands for accountability, [180] noting that its own research, and that conducted overseas, has found that the community is aware that, in addition to their initial qualifications, lawyers were required to keep up with changes and new developments in the law. [181]

2.143 The Law Society's Task Force does not support retention of the status quo -- it is said that the present MCLE scheme is not a best practice scheme for the enhancement of professional competence through regulation. The Task Force considered options for improvement of the existing MCLE scheme, through the establishment of a compliance register and refinement of the requirements, such as extending the scheme over a three year period, and encouraging practitioners to complete professional development programs in particular topics by rewarding them with `bonus' MCLE points. However, the Task Force does not favour this option as it would be difficult to enforce more stringent requirements in NSW and the Law Society and the profession lack the financial and other resources to sustain an enhanced scheme. The Task Force warned against outright abolition of MCLE, arguing that the public and professional advantages of continuing professional development are significant, and that abolition of MCLE without replacement would send an adverse message to the profession and the community.

2.144 The Task Force's favoured approach is to replace the MCLE scheme with a voluntary scheme that relies on providing high quality professional development opportunities, along the lines of the programs currently available for general medical practitioners and accountants. Practitioners would receive professional recognition at various stages of their careers, with each stage linked with a requirement for practitioners to accumulate professional development units. Key features of the voluntary scheme are [182]

differing requirements depending on `status' within the profession
reward of status membership levels within the profession
a link between membership status and access to members' services offered by the Law Society
the use of random audits to verify compliance
the use of a triennium model to provide flexibility
development of a code of conduct for CLE providers, to be developed in consultation with the Continuing Legal Education Association of Australia.

2.145 The Task Force noted that while a significant amount of energy has been devoted to developing models of education and training at the pre admission level (both academic and PLT), this has not been matched by the development of comprehensive policies for continuing professional development by the professional associations. The Task Force concluded that the Law Society should only move to a voluntary scheme of CLE if a well considered and comprehensive professional development vision for the legal profession can be developed. [183]

2.146 The Commission accepts the basic thrust of the Task Force Report. Apart from linking CLE and professional development with membership and associated benefits in a professional association, the system of practising certificates also could be re-conceived to place more emphasis on a commitment to lifelong learning as an incident of being a competent professional. At present the restrictions on limited practising certificates generally do not contain positive obligations to upgrade skills and knowledge. Rather, they limit the ability of a solicitor to become a principal in a firm, sign off on trust accounts, and so on. It may be preferable for practising certificates to be made conditional, with a range of further educational, training and experiential requirements specified which, unless met, would cause the certificate to lapse. This would place much more responsibility on the individual practitioner and on the profession generally -- and could serve to revitalise the provision of CLE programs.

Recommendation 7. As a condition of maintaining a current practising certificate, all legal practitioners should be obliged to complete a program of professional development over a given three year period. Legal professional associations should ensure that practitioners are afforded full opportunities to undertake, as part of this regime, instruction in legal ethics, professional responsibility, practice management, and conflict and dispute resolution techniques.

Education and professional development for judges, judicial officers and tribunal members

Education for judges and magistrates

The need for an Australian judicial college

2.147 In DP 62, the Commission considered at some length the need for a coherent and high quality system of judicial education in Australia. The Commission quoted AJAC. [184]

As important as any issue affecting access to justice is the quality of consideration provided by the judiciary during the hearing and determination of a matter. While it is generally accepted that the quality of judicial decision making in Australia is of a very high standard, there is, no doubt, still room for improvement in this area. Given the inherent costs of litigation, not only to individuals but to the community at large, the fewer first instance decisions that need to be corrected on appeal the cheaper and more efficient the court system will be. There is clearly a nexus between the quality of decision making and the total cost of the court system, and hence access to justice. [185]

2.148 In its 1994 report, AJAC recommended that `The Commonwealth should explore, in conjunction with the States, the possibility of establishing an independent national judicial education centre'. [186] In DP 62, the Commission noted that

Until the 1980s there was virtually no formal judicial education in Australia. Judges were presumed to possess the necessary skills and experience for judicial functions because the vast majority of them had been selected from among the ranks of the (mid career to senior) bar, and thus familiar with evidence, practice and procedure, advocacy and courtroom dynamics ... [187]

In recent years there has been a belated recognition that transforming a skilled lawyer into a skilled jurist can be `a tricky manoeuvre', that `going from adversary to adjudicator means changing one's attitude, learning and using new skills, and in some cases severing old ties'. [188]

Recognition of a need for, and a commitment to provide, more formal and structured education for judges has come relatively late to the Australian justice system. [189] By comparison with other common law jurisdictions, the development of judicial education here is `patchy' and we are said to be `still in the judicial education starting blocks or perhaps even on the warm up track'. [190]

2.149 Judicial education, once the subject of controversy, is now well accepted as a natural part of the professional development of judicial officers. [191]

2.150 Much of the impetus to secure formal judicial education has come from judges and magistrates themselves. The spur to implement such courses and programs has come in response to the changing roles and responsibilities of judges and decision makers, and the increased public demands, expectations and scrutiny of the justice system. [192]

2.151 In DP 62, the Commission suggested that `a national institute for judicial education' be established in Australia. [193] While the submissions varied in their suggestions about the structure and composition of the body, the design and reach of programs, and funding, there was uniform support for the general concept. The Law Council, which described its attitude on this issue at the time of the Commission's 1997 Issues Paper as `equivocal', reported that its `thinking has developed and refined', and it `agrees with the general tenor' of the Commission's proposal. [194]

2.152 The idea of a national judicial college was given a major push forward by the former Chief Justice of Australia, Sir Anthony Mason, in an address to the Australian Institute of Judicial Administration (AIJA) Conference in August 1999, [195] by Chief Justice Gleeson in his 1999 `State of the Judicature' address, [196] and by the publication of a discussion paper [197] prepared by Chris Roper on this topic, jointly commissioned by the AIJA and the Judicial Conference of Australia (JCA) (the AIJA-JCA Discussion Paper). [198]

2.153 The Commission noted in DP 62 that Australia is now out of step with other (industrialised) common law countries, which have established national judicial colleges. The United States is particularly well served in this regard, [199] with 65 national and state bodies actively engaged in judicial education, including many which are well known in Australia, such as the National Judicial College (in Reno, Nevada), [200] the Federal Judicial Center (in Washington DC), and the National Center for State Courts (in Williamsburg, Virginia).

2.154 In the United Kingdom, the Judicial Studies Board was established in 1979. Its initial focus on criminal law, especially sentencing, was broadened in 1985 to take in civil and family law, and to extend its reach from judicial officers to include the training of magistrates (including lay magistrates) and tribunal members. [201] Canada also opted for a centralised, national model, establishing the National Judicial Institute (formerly the Canadian Judicial Centre) in 1998, well known for its cultural awareness programs. [202] Judicial training institutions also have been established in recent years in New Zealand and Singapore. [203]

2.155 In Australia, the availability of judicial education programs varies considerably according to jurisdiction. AIJA runs highly regarded training programs, but this is not its main brief. [204] New South Wales (which has about one third of all the judicial officers in Australia) is best served, with the Judicial Commission of New South Wales (JCNSW) established in 1986 by legislation `to organise and supervise an appropriate scheme for continuing education and training of judicial officers'. [205] The JCNSW has an education division with full-time staff running a large array of programs. [206] In 1998, the JCNSW ran 28 conferences, involving 1725 days of judicial officer attendance, including orientation programs. [207] The JCNSW also has an extensive publication program, with the production of `Bench Books' for each court, a regular journal (the Judicial Officers Bulletin), research monographs, statistical papers, and online facilities (most famously `JIRS', the Judicial Information Research System, which includes a sentencing database as well as online access to cases and statutes).

2.156 Since 1996, the JCNSW and the AIJA have run an annual, five day, National Judicial Orientation Programme in Sydney. [208] There is a similar program available for magistrates, as well as a two day pre-appointment program for persons about to become magistrates.

2.157 As noted in DP 62

The particular deficit in Australian judicial and court education offerings is the lack of a specialist judicial or justice education centre. This is in no way a criticism of the courses and educational material provided by AIJA, JCNSW, the University of Wollongong [Centre for Court Policy and Administration], or through in-house programs developed by the courts and tribunals themselves. Indeed, those programs generally have received high commendation. However, as the AJAC report noted, [209] the Judicial Commission's functions relate to New South Wales, AIJA's focus is primarily on judicial administration, and no single court or tribunal is of sufficient size to provide an adequate range of courses for the orientation and continuing needs of all of its judicial officers. [210]

2.158 This echoes a very similar appraisal in Canada in 1986 by Justice Stevenson,which eventually led to the establishment of a National Judicial Institute (NJI).

Existing Canadian programmes show uneven coverage with significant gaps and deficiencies, duplication, and a lack of coordination with a consequent waste of resources. There is also a shortage of substantial professional organization and presentation.
What is lacking in Canada is any national coordination of resources, any effective means of exchanging information, and any adequately funded long-range planning capacity. There is no national body with permanent staff developing effective teaching techniques. There does not exist an agency with the ability and capacity to respond to national needs. [211]

The nature and structure of an Australian judicial college

2.159 The mission statements of the various judicial education institutes tend to be couched in similar terms and are appropriate for adaptation to the circumstances of Australia. Typical of the statement of objectives is the one from the Canadian NJI, which states that it exists

[t]o foster a high standard of judicial performance through programs that stimulate continuing professional and personal growth; to engender a high level of social awareness, ethical sensitivity and pride of excellence, within an independent judiciary; thereby improving the administration of justice. [212]

2.160 Although it is not a matter for the Commission to engage in detailed planning for the establishing of an Australian judicial college [213] -- and in any event AIJA and the JCA have this well in hand -- there are some general principles relating to the nature and structure of judicial education which are worth identifying to assist in this process.

2.161 In the AIJA-JCA Discussion Paper, Chris Roper surveyed the literature and distilled `seven fundamental themes'.

that it is essential that programs are judge-controlled and often judge-delivered
the college's activities should be developed in close liaison with courts at various levels and places, so that they reflect the diversity of real interests and needs
participation in the college's activities should be voluntary
there should be a diversity of programs, including skills and opportunities for reflection on the judicial role
the activities should take into account that judges are good at self-directed learning
the college should be clearly professional in its operations, with a comprehensive and coherent curriculum and incorporating educational principles into its activities, and
the college's activities should be flexible, reflecting the variety of ways in which judges learn and professionally develop themselves, and should be decentralised as much as possible. [214]

Voluntary participation

2.162 In DP 62, the Commission stated that

As a general matter, the Commission's submissions and consultations overwhelmingly support voluntary judicial education and its continuing development. There is less support for mandatory judicial education, except perhaps for intake/orientation programs. Voluntary participation is consistent with judicial independence and the self directed mode of learning characteristic of judicial officers. [215]

2.163 The Law Council's submission also highlighted this point

The Law Council wishes to reiterate that its support for a national judicial education institute is entirely dependent upon participation in education programs being not compulsory of judges ... [T]he Law Council believes that any such compulsion would tend to compromise judicial independence. The Law Council also does not believe that compulsion is necessary. It believes that if suitable education opportunities are made available, individual judges will be able to determine their own requirements and avail themselves of the opportunity to attend programs relevant to them. [216]

2.164 In the AIJA-JCA Discussion Paper, Roper describes this condition as the `non-negotiable requirement of the maintenance of judicial independence'. [217] This principle is universally accepted in common law countries. In the United States, which has the longest experience and the most extensive programs, only one state has ever mandated judicial education for judges. In 1990, the North Dakota Supreme Court promulgated an Administrative Rule [218] to impose (effective in 1991) mandatory continuing education requirements on Municipal Court judges. However, this rule was repealed in 1994.

Judicial control over program governance

2.165 Chief Justice Gleeson provides a clear rationale for the need for judicial control over judicial education programs in the following terms.

The first reason concerns the constitutional principle of judicial independence. The purpose of the independence of the judiciary is to ensure both the reality and the appearance of impartiality in judicial decision-making. That purpose would be undermined if the training and continuing education of judicial officers were in the hands of people who do not share the judiciary's independence ...

The second reason is related to the first, but is essentially pragmatic. For judicial training to be effective, it must be provided by an organisation with such standing amongst judges and magistrates that they will give it their full co-operation and support. An organisation controlled by the executive government would simply be ignored by a substantial section of the judiciary. [219]

2.166 Chief Justice Gleeson has commented that the experience of establishing and operating the JCNSW [220] makes clear the lesson that an Australian judicial college `should be established as part of the judicial branch of government, and it should participate more fully in the independence of the judiciary'. [221] The Chief Justice also suggests that the heads of jurisdiction must be intimately involved if success is to be achieved.

This is a matter of considerable practical importance. Judicial education programmes are tailored to the needs of each particular court. Their success depends upon the support of the head of the court. It is difficult to imagine how a programme could work successfully in relation to a court against the opposition of the head of jurisdiction. At a national level, the counterparts of the heads of jurisdiction are the members of the Council of Chief Justices. As a matter of practicality, their support for any particular model of a National Judicial College would be essential. [222]

2.167 The Federal Court of Australia also makes this a key to its support for the concept.

The Court strongly supports the establishment of a national institute for judicial education, provided that it is led by the judiciary and it is properly funded. These twin requirements underlie the impressive success of the Judicial Studies Board in England and Wales. Judicial leadership is the key to the success of the proposal. [223]

2.168 The pattern overseas also strongly supports judicial governance of programs. In the United Kingdom, the report which led to the formation of the Judicial Studies Board (JSB) concluded that, for reasons of credibility and independence, `to be acceptable to the judiciary, [the Board] must be run and managed by the judges themselves'. [224] The JSB subsequently was established as an autonomous department within the Lord Chancellor's Department, with a memorandum of understanding which stated that the JSB `will enjoy a level of autonomy in its financial affairs consistent with its independence in assessing the need for, and providing, judicial training'. [225]

2.169 In New Zealand, the Institute of Judicial Studies (IJS) was established within the Department of Courts but its memorandum of understanding is based on the English one, providing that `in order to maintain judicial independence, the Institute will have autonomy in its affairs'. [226] The Board of the IJS is comprised of five judges, the Chief Executive Officer of the Department of Courts, one senior practitioner, one academic lawyer, and one community member. In Canada, all but one of the members of the board of the NJI are judges. [227]

2.170 In DP 62, the Commission noted that

submissions and consultations have strongly supported significant judicial involvement in the design and delivery of educational services. Armytage has suggested that this reflects the judges' deeply held view that they are the best arbiters of their own learning needs and should operate free from any external prescription. [228] The Commission agrees that this feature of judicial education planning and delivery should continue. However, care also must be taken to ensure that judicial education does not become overly cautious or a closed shop, divorcing judges from exposure to bodies of expertise and community experiences and perspectives from which they could benefit. [229]

The Commission would favour a model in which a national judicial college was established as a statutory corporation independent of executive government, with a board that ensures judicial control (in deference to judicial independence) but is leavened with some appropriate external (academic, professional and community) representation. For example, the JCNSW is comprised [230] of six `official members', who are the presiding officers of the various jurisdictions, and four other members appointed by the Governor on the nomination of the responsible Minister. Of the appointed members, one must be a legal practitioner, nominated after consultation with Presidents of the Bar and the Law Society, and the others must be persons of `high standing in the community', nominated after consultation with the Chief Justice of the Supreme Court of NSW.

2.171 If a national judicial body was established, as recommended by the Commission (see recommendation 8 below), the issue for Australia is how to compose a board in such a way that it is representative, without making it unduly large and thus unwieldy and expensive to maintain. [231]

National or federal?

2.172 As described above, the programs mounted by the JCNSW are generally available, on a fee for service basis, to judicial officers from other Australian jurisdictions and overseas. Individual courts also operate effective judicial education programs from time to time. For example, the Family Court has undertaken significant social context education, focusing on gender, race (especially in relation to Aboriginal and Torres Strait Islander peoples) and cultural awareness issues. [232] The Family Court is notable in that it includes all of its staff (that is, support and counter staff) in its educational programs, eschewing a hierarchical approach. The Federal Court also has an active program for judges, including the organisation of an interesting `Science Day' for the Supreme Court and Federal Court Judges' Conference.

2.173 All of this activity reflects the basic fact that judges are now enthusiastic about continuing judicial education -- so long as it does not smack of `the executive sending judges back to school' -- and courts are actively seeking opportunities to provide it. Nevertheless, it appears to be widely accepted (and manifest in the training programs of AIJA) that reliance upon a court by court approach is undesirable, and that a broader base is necessary. Apart from achieving economies of scale and other matters relating to efficiency, there is also a view among judges that the best judicial education often involves going beyond periodic meetings with colleagues to enjoy the stimulation and benefits of `cross-fertilisation' and `broadening of horizons' achieved by interacting with peers from other jurisdictions (from within, and outside, Australia). [233]

2.174 The Council of Chief Justices of Australia and New Zealand have encouraged AIJA to pursue the initiative of establishing a national judicial college [234] -- and it is telling that, among the options considered in the resulting discussion paper commissioned by AIJA and the JCA, [235] retention of a court by court approach is not mentioned.

2.175 Until recently, short shrift also would have been given to any thought of establishing a dedicated college for the federal judiciary, given the relatively small numbers. However, there are currently 109 federal judicial officers serving in the High Court, Federal Court and Family Court, [236] and they will soon be joined by 16 magistrates appointed to a new federal magistrates court [237] -- so that there is now a critical mass of `Chapter III judges' which could justify and sustain a stand alone federal judicial college.

2.176 However, Chief Justice Gleeson also has noted that there are almost 800 judicial officers (judges and magistrates) currently serving in State and Territory courts, and that it is still the case that the state governments of NSW, Victoria and Queensland each appoint more judicial officers than the Federal Government. [238] Notwithstanding the growth of the federal court system since the 1970s, it is also the case that the judicial power of the Commonwealth is still widely dispersed, with some reliance placed upon state courts vested with federal jurisdiction under s 77(iii) of the Constitution. [239]

2.177 The Commission believes that a national approach to judicial education would be preferable, building upon the national (and regional) success already achieved by AIJA. [240] The Commission confirms the views expressed in DP 62 that the establishment of a national judicial college would

confirm the nexus between judicial education and judicial independence
be the most effective means of developing and maintaining national standards
be generally consistent with self directed, judge led, educational approaches
take advantage of economies of scale
have advantages over a system of in-house education insofar as it could utilise a variety of external inputs and programs to suit new or more experienced judges
permit development of integrated curricula for judges, magistrates and tribunal members
enhance collegiality between judges, magistrates and tribunal members and
provide an opportunity to develop partnerships with, for example, university law schools and legal professional organisations, to design and present programs which may complement or supplement in-house efforts. [241]

Range of judicial officers covered

2.178 Opinions and practices differ about whether a national judicial body should attempt to cater for all judicial officers (judges and magistrates), tribunal members and others (including court staff). The AJAC report favoured an inclusive approach.

The primary function of the centre should be to provide courses and other educative material for judges, magistrates, members of dispute resolution tribunals and any other person performing judicial or quasi-judicial functions. [242]

2.179 In DP 62, the Commission wrote that

[t]here are certain core skills desirable for judges, magistrates and tribunal members. Education and training planning and programs should recognise such common features. Collegial interaction is enhanced by judges, magistrates and tribunal members sharing experiences and discussing common problems and successful (or sometimes unsuccessful) outcomes. Integrated programs are also consistent with the trend towards national practices and procedures, the interrelationships between federal courts and tribunals and their shared jurisdiction in areas of public law and family law. [243]

2.180 The programs of the United Kingdom's JSB are open to judges, magistrates (including lay magistrates), recorders, assistant recorders, and tribunal members (over 70 tribunals with more than 30,000 members). The JSB's orientation has largely been around the needs of those other than judges. In practice, higher court judges have not participated extensively, except as `faculty', [244] although this may change with the broadening of the JSB's brief to cover of civil and family law matters.

2.181 In the United States, [245] the National Judicial College also caters for magistrates and tribunal members, and runs some programs for practitioners -- and, of course, must deal with the fact that some judicial officers in the United States (mainly in state lower courts) do not have any legal qualifications. The Federal Judicial Center also has long taken responsibility for running programs for court administrators.

2.182 However, the NJI of Canada operates for judges only, with the view that other bodies should have responsibility for developing and operating customised programs for tribunal members, court staff, and others. [246]

2.183 The JCNSW has responsibility for New South Wales judges (and masters) and magistrates. An amendment to the Industrial Relations Act 1996 (NSW) also appears to bring judicial members of the NSW Industrial Commission within the meaning of the term `judicial officer' for the purposes of education and conduct under the Judicial Officers Act 1986 (NSW). It is understood that the New South Wales government is considering whether to extend coverage to include members of the State's Administrative Decisions Tribunal (ADT) -- which would double the number of persons within the ambit of the JCNSW. The 1998 proposal to establish a judicial college in Victoria (which did not proceed for funding reasons) also envisaged coverage of tribunal members. [247]

2.184 The differences between judicial officers and tribunal members are sharper in the federal arena than in the States and Territories, owing to the constitutional reservation of the exercise of judicial power to persons appointed as `Chapter III judges'. By way of contrast, many members of state tribunals -- such as New South Wales's ADT and the Victorian Civil and Administrative Tribunal (VCAT) -- act in much the same ways as magistrates (albeit in more specialised jurisdictions), hearing disputes at first instance and making decisions determining the rights of the parties.

2.185 The Commission's preference would be for an Australian judicial college to concentrate on providing programs for `Chapter III judges' in the federal system, and the equivalent judicial officers in the States and Territories. This division is emphatically not supported on the basis of enforcing status distinctions nor discriminating between those with judicial tenure and those with part time or term appointments. Rather, the Commission believes that, for reasons of differing backgrounds [248] and roles, and differing educational and training needs, tribunal members generally would be better served by developing their own programs. This is particularly true for review tribunals which have specialist administrative functions. Programs customised for tribunal members would help establish their own core sense of identity and professional cohesion and define an appropriate concept of independence in the context of reviewing administrative decisions.

2.186 However, an Australian judicial college could deliver inhouse expertise and programs which, from time to time, could include courses of interest to tribunal members -- as well as practising lawyers, bureaucrats, mediators, and business people. There also could be some programs with common streams for judges and tribunal members, with such interaction benefiting both groups. [249] Education and training for tribunal members is considered below.

The nature and content of programs

2.187 As discussed above (see para 2.177), the Commission accepts the critical importance of judicial involvement in, and ultimate control over, programs. In DP 62, the Commission considered the literature and practice in Australia and overseas on the design and delivery of judicial education programs, [250] and it is unnecessary to repeat that here at length.

2.188 Submissions and consultations raised a number of other matters worth considering. The desirability of programs aimed at combating `burnout' among judicial officers was mentioned a number of times. [251]

2.189 Another point was that the establishment of a national judicial college should not preclude participation in other programs offered in Australia, [252] or the better overseas programs, such as McGill University's visiting judges-in-residence program, or the extremely popular program offered by Princeton University. [253] The latter, which has a waiting list of several years, is a week long residential program of judicial education which involves no `law'. Instead, the University brings leading figures in their field to acquaint senior judges with the latest research and thinking in such areas as visual art, literature, astrophysics, biotechnology, architecture, engineering -- subject areas in which litigation may arise.

2.190 It was said by two law deans, Professors Ralph Simmonds and Ian Campbell, that it was sometimes difficult to convince judges to make time in their busy schedules for judicial education, and that programs such as the ones at Princeton and Cambridge were popular because they were successful in `re-motivating and re-charging' busy judges. [254] They suggested that what should be avoided is using `the language of CLE', with its connotations of an extra obligation, after an exhausting day's work, noting up `recent developments' in some area of the law. [255]

2.191 Justice French also pointed out that the experience of judges delivering education as `faculty' also was valuable, since this required research, careful thought in preparation, and interaction with participating colleagues.

2.192 An important matter which does not often appear in the literature was highlighted by some judges: the danger of being too specific in judicial education programs and compromising subsequent litigation. For example, lectures by anthropologists aimed at acquainting judges with the nature of traditional land ownership, which looked at the history of a particular place or the customs of a particular group, could ground allegations of bias of participating judges in the event that a native title claim was made which involved that land or group.

Issues of location and affiliation

2.193 Whether an Australian judicial college emerges as a national or federal body, if the college encompassed the existing resources of the JCNSW (see below), then there would be a logical argument in favour of a Sydney base; otherwise, the choice is at large.

2.194 However, it is important to note that the suggested use of the term `college' for these purposes does not signify a view on the part of the Commission that the best model necessarily involves establishing a college campus -- an actual, dedicated, physical site with its own buildings, and so on, in which all educational programs are run. [256] It is more likely in the Australian context that the college would have its staff and secretariat headquartered in one city but would regularly take its courses out to the states and territories. The use of information technology now makes feasible the development of a virtual campus.

2.195 Many of the best judicial programs have an affiliation with a university. As discussed above, the basic principal of judicial independence and control is accepted; however, as the Stevenson report in Canada stated, ensuring ultimate judicial (rather than academic) control of programs is simply a matter of management. [257] The National Judicial College is based on the campus of the University of Nevada-Reno, but is established as a private (not for profit) corporation with its own board of trustees. The Canadian NJI was originally headquartered at the University of Ottawa; it has since moved off campus, but maintains an association with that University. The Commonwealth Judicial Education Institute (CJEI), [258] founded in 1994 by the Commonwealth Magistrates' and Judges' Association, is located at the Law School at Dalhousie University in Halifax, Nova Scotia, Canada. The Institute of Justice and Applied Legal Studies (IJALS), established at the University of the South Pacific in 1995, also plays an important regional role in research and delivery of judicial studies, in association with the South Pacific Judicial Conference. [259]

2.196 The AIJA-JCA Discussion Paper surveyed the international experience, and provided a useful summary of the pros and cons of co-locating a judicial college with a university.

In summary, the advantages appear to be --

reduced chance of isolation and low profile
possible free or cheap premises
possibility of attracting high level staff because of academic rank, some role within the university, etc
educational services from the university
administrative and other support services from the university, either free or at a reduced rate
imposition of financial and administrative accountability mechanisms.

The disadvantages appear to be

reduced perception of autonomy and independence
increased bureaucratic requirements
heightened emphasis on academic, as opposed to practical, aspects of the college's work. [260]

2.197 In DP 62, proposal 3.2 suggested that an Australian judicial college `would regularly utilise partnerships with other entities (such as academic institutions and professional associations) to conduct its education, training and research programs'. [261] The Commission favours the establishment of an independent national judicial commission, but believes that the advantages of affiliation with a university outweigh the disadvantages, and the emerging college should explore, as a priority, an appropriate form of contractual linkage with a university (or universities). [262] This linkage should not, of course, preclude the tendering or commissioning of specific projects (research, curriculum design, etc) to other bodies or individuals.

Funding

2.198 The National Judicial College (NJC) in the United States began life with a major endowment from a charitable foundation and, as noted above, has strong links with a (public) university. For recurrent funding, the NJC relies on income from the endowment, plus `a combination of tuition, annual gifts and grants from individuals, corporations and foundations'. [263] It must be said that this is a quintessentially American model -- relying as it does upon the existence and largesse of philanthropic foundations, private donations and corporate sponsorships, rather than on government funding. As a practical matter it is unlikely to translate to Australian circumstances. There is also an important issue of principle -- that is, the compatibility of private funding with judicial independence. Justice Stevenson's survey of judges in Canada found that there was virtual unanimity on the proposition that private funding would be inconsistent with judicial independence. [264]

2.199 In DP 62, the Commission suggested that the national judicial college `should be sufficiently resourced by the Commonwealth to carry out its mission, and also should receive contributions from the States and Territories on the basis of usage'. [265] DP 62 also acknowledged that

Professional education is expensive. The time taken for education is time away from active case management or decision making. There are significant costs associated with developing and producing materials and paying the salaries of education support staff. In federal courts and tribunals, in particular, the travel costs alone associated with bringing judges and members together for education and training programs can be substantial. [266]

2.200 However, the corollary is also true -- that instances of poor judicial performance are very expensive, both in terms of actual dollars and the loss of public confidence in the quality and integrity of the legal system. Chief Justice John Phillips AC of Victoria, [267] and the Chief Executive of the JCNSW, Mr Ernie Schmatt, [268] both have pointed out that if judicial education programs can have even a small effect on reducing delays in judgment writing, in management of court lists, and in minimising errors which result in appeals, the savings involved should greatly outweigh the outlays. Comparable common law jurisdictions such as Canada, England, New Zealand and Singapore, and within Australia the State of New South Wales, have all made the calculation that judicial education is of such importance that the commitment of public funding for this purpose (beyond the normal allocation for the operation of the courts) is well justified.

2.201 If an Australian judicial college is established, the Commission recommends that this be funded by a separate allocation from the Commonwealth. The Commission agrees with the submission from the Law Council [269] that it would be inappropriate to use court fees for this purpose, which could result in increased fees and diminished access to the courts.

2.202 Given the Commission's strong preference for a national body, assuming responsibility for the education of State and Territory judicial officers as well as federal judicial officers, the Commission recommends a funding mechanism which seeks to reflect this mix and to promote a sense of ownership (and inevitably a role in governance) amongst all of the parties. That is, funding for an Australian judicial college should be determined on the basis of block grants from governments, with 50% from the Commonwealth and 50% from the States and Territories, apportioned on the basis of population, as well as revenues generated through registration fees and the sale and licensing of materials. As Chief Justice Murray Gleeson has commented, supporting a national judicial college in this way `will require a considerable exercise in cooperative federalism'. [270]

2.203 There are relevant precedents for such an approach. For example, AIJA is funded 50% by the Commonwealth and 50% by the states and territories (proportionate to population); the National Coronial Information System is funded 50% by the Commonwealth, 50% by the states and territories (proportionate to population); [271] and the National Courts Statistics Unit is funded by equal (33.3%) contributions from the Commonwealth, the Australian Bureau of Statistics, and the States and Territories (proportionate to population).

2.204 The level of funding for the college should be benchmarked nationally against that portion of the New South Wales government's funding of the JCNSW which is used for judicial education. [272] Assuming that New South Wales chose to participate fully in an Australian judicial college, the state could likewise contribute or transfer the resources (including, perhaps, the personnel) it currently devotes to the educational activities of the JCNSW.

Recommendation 8. The federal Attorney-General should facilitate a process, through the Standing Committee of Attorneys-General, to establish an Australian Judicial College, with a governance structure under the control of the judiciary. The College would have formal responsibility for meeting the education and training needs of judicial officers, particularly in relation to induction and orientation courses for new appointees, and programs of continuing judicial studies and professional development.
Funding for the College should be determined on the basis of block grants from governments (50% from the Commonwealth and 50% from the States and Territories, apportioned on the basis of population), as well as revenues generated through registration fees and the sale and licensing of materials.

Professional development for tribunal members

2.205 In DP 62, the Commission expressed the view, confirmed in this report, at paragraph 2.185, that

[g]iven the diverse range of backgrounds of tribunal members, and their differing needs, the Commission believes that basic education and training programs generally should be separate from those of judicial officers. [273]

2.206 The Commission also noted that

As is the case with judicial officers, there is no general set of educational or experiential pre requisites for appointment to a federal tribunal. In the case of some tribunals, such as the Administrative Appeals Tribunal (AAT), some criteria for appointment of members are laid down in legislation. However, for most tribunals, qualifications for appointment are fixed from time to time by individual ministers who are responsible for making appointments and recommending them to the Executive Council. Tribunal members are appointed from a broad range of occupational groups. Legal skills are relevant, although tribunals have sought a diverse, multi skilled membership. [274]

2.207 In Canada, the Society of Ontario Adjudicators and Regulators (SOAR) has listed education and training as an essential component of performance management, stating that

No matter how careful the selection process, most candidates will not have a full complement of all the knowledge, skills, attitudes and values required to be a good adjudicator at the time they are selected. Some of the necessary attributes will have to be learned or improved. Therefore, a tribunal cannot expect all members to consistently meet performance standards or expectations unless it is prepared to provide the necessary training and continuing education required to do so. Such training should occur at the beginning of a member's tenure and continue throughout. [275]

2.208 In its Better decisions report, [276] which followed from a comprehensive review of Commonwealth merits review tribunals, the Administrative Review Council (ARC) articulated a list of skills which it suggested are essential or desirable for members of administrative merits review tribunals

understanding of merits review and its place in public administration
knowledge of administrative review principles
analytical skills
personal skills and attributes and
communication skills. [277]

2.209 The ARC recommended, [278] and the Commission endorsed in DP 62, that tribunals cooperate to develop

a minimum set of core skills and abilities required of effective tribunal members, for use in organising professional development of members and in the process of developing selection criteria. [279]

and that

review tribunals should ensure that all new members have acquired a minimum level of knowledge and skills before they commence reviewing decisions
the skills and experience of review tribunal members should be developed through their participation on multi member panels where appropriate and through training and development programs and
all review tribunals should cooperate with each other and where appropriate with courts and the AIJA to provide professional development programs for members. [280]

2.210 Generally speaking, individual federal tribunals have endeavoured to provide induction training for new appointees and some ongoing professional development training programs for members. As Julian Disney noted

Most legal and medical members, for example, could benefit from greater exposure to other disciplines, skills, and values. Many non-lawyers would benefit from a systematic but succinct introduction to legal principles, structures, procedures and skills. Promising initiatives have been commenced in several tribunals along these lines; due largely to particular leadership which by reason of professional background or gender is less constrained by legalistic traditions and obsessions with status. These initiatives epitomise the breath of fresh air which tribunals can bring to the stuffy confines of traditional justice systems, although it remains to be seen how far the air will be allowed to circulate. [281]

However, as is the case with judicial officers, there is a need for greater comprehensiveness, coherence and coordination. In DP 62, [282] the Commission pointed to the `useful model' of the AAT's continuing professional development program, [283] in place since 1992, and stated in proposal 3.3 that

[e]very federal review tribunal should have an effective professional development program with stated goals and objectives. This should include access to induction and orientation programs, mentoring programs, and continuing education and training programs. In particular, legal training in areas relevant to decision making should be made available to members of tribunals who do not have legal qualifications. [284]

2.211 The President of the AAT, Justice Deirdre O'Connor, has written that continuing education is no less important for tribunal members than judges, although professional development programs also may be important to wean some tribunal members away from over reliance on legal techniques.

Members of the Administrative Appeals Tribunal ... have on-going developmental needs, although the nature of these needs will obviously be different to those of judges ... The Tribunal can deliver better decisions through on-going professional development of members ... Much has been said and written about the legalism in the Tribunal ... It has to be acknowledged that when members are appointed from the legal profession and other areas of the law, they are likely to bring with them a lawyer's way of doing things ... Professional development can be a useful means of equipping members with different, non-legal techniques which they can use in conducting matters in the Tribunal. Without knowledge of such techniques, the culture of legalism cannot be changed. [285]

2.212 Submissions were strongly supportive of this proposal, including those from the President of the ARC, Ms Bettie McNee (on behalf of the ARC), [286] the Law Council of Australia, [287] Professor Ralph Simmonds, [288] and Professor Neil Rees (a former President of the Victorian Mental Health Review Tribunal). [289]

2.213 Unlike the position with respect to judges, there are fewer sensitivities about independence in relation to the control and provision of education and training programs for tribunal members. As discussed above, an Australian judicial college would be well placed to offer such programs from time to time. Some universities also have the existing expertise and infrastructure, and could provide the economies of scale, to offer attractive programs. For example, Monash University is developing a Graduate Certificate in Tribunal Procedures for tribunal members, with a pilot program scheduled to commence in July 2000. [290] Topics under consideration are the concepts of separation of powers, merits review, and natural justice; statutory interpretation; confidentiality; ethics; dealing with unrepresented parties; and providing reasons for decisions. It is intended that the program will be available online, to overcome problems of the geographic dispersal of members and their differing decision making backgrounds.

2.214 The Commission also understands that the University of Wollongong, Monash University and the Australian National University are planning to collaborate on the design and implementation of education and training programs, including induction and orientation programs. Although primarily aimed at tribunal members, many of the planned programs are thought to be sufficiently `generic' that they can also be used by primary decision makers. Similarly, the well regarded software developed by the Canberra based SoftLaw Corporation to improve the quality of primary decision making could be adapted in the other direction, for use by tribunal members. [291]

Recommendation 9. Every federal review tribunal should have an effective professional development program with stated goals and objectives. This should include access to induction and orientation programs, mentoring programs, and continuing education and training programs. In particular, training in administrative law principles relevant to decision making should be made available to members of tribunals who do not have legal qualifications.

Tribunals, agencies and independence

2.215 While review tribunals are part of the executive arm of government, tribunal members must bring the same quality of independent thought and decision making to their task as do judges. It is crucial that members of the community feel confident that tribunal members are competent and of the highest integrity, and that they perform their duties free from undue government or other influence.

2.216 Review tribunals have an important, complex and ongoing relationship with government agencies whose decisions they review. Agencies can influence (or be perceived to influence) review tribunals in subtle ways.

2.217 Perceptions about the independence of tribunals have contributed to artificial barriers between agencies and tribunals which may be to the detriment of quality decision making. For example, sensitivity to perceptions of independence may contribute to reluctance to appoint tribunal members with experience of high level agency primary decision making [292] and the absence, in many review jurisdictions, of adequate conduits for communication between the tribunal and the agency, which may be needed to assist in adequate investigation and resolution of the review application.

2.218 Several of the Commission's recommendations aim to strengthen the relationship between agencies and tribunals, to enable more effective investigative assistance to be given by agencies to review tribunals and by placing new duties on agencies and their representatives to assist tribunals (see recommendations 121 and 122 in chapter 9). The Commission does not see placing an emphasis on agency and review tribunal cooperation in administrative decision making as threatening independence, if handled with proper sensitivity. Review tribunals should work with agencies in promoting normative change and enhancing the quality of decision making across the board. Professor Marcia Neave, former President of the ARC, has stated

[t]here needs to be more dialogue between tribunals and Government agencies, both for the purposes of increasing understanding of the benefits of review in the bureaucracy and to ensure that tribunal members understand administrative processes and agency policy approaches which provide the context within which particular decisions are made. [293]

2.219 In the current climate of change in administrative review, poor communication and limited cooperation between agencies, tribunals and advocates can handicap effective structural and procedural reform.

A new council on tribunals

2.220 In DP 62, the Commission proposed that a Tribunals Council should be established to promote and facilitate the sharing of professional information and experience amongst administrative review tribunal members, as well as assisting in education and training for administrative decision makers. [294]

2.221 Following further consideration and consultation, the Commission now makes more detailed recommendations for the establishment of a council on tribunals, comprised primarily of the principal members of federal and state review tribunals.

2.222 The Commission also suggests, in addition, that there should be a broad based organisation, with a membership drawn from the major players interested in the appropriate development of the administrative justice system, including federal and state tribunal members, registrars, case officers and federal and state agency decision makers. The reasons why these new institutions are considered desirable, their possible roles and memberships and ideas on how they might be established are discussed below.

Changes in administrative review

2.223 The Commission considers that administrative justice is advanced by mechanisms that allow agencies and review tribunal decision makers to work together to identify problems and solutions regarding the governing legislation, process or structure of administrative decision making.

2.224 Such mechanisms are particularly important in a context of rapid change and changing roles and practices in administrative justice including

the establishment, abolition, restructuring and proposed amalgamation of specialised courts, tribunals, investigative and regulatory agencies
the privatisation and contracting out of government services, affecting the framework for public sector employment and administrative review rights
developments in a `best practice' public service that have stressed outsourcing, benchmarking, strategic risk management, contestability, user pays and market testing
the public's higher expectations of, and the increased public accountability of, tribunal services which has seen the development of benchmarks, performance standards and government measures of efficiency for tribunals
the development and implementation of case management in tribunals
the `privatisation' of certain dispute resolution processes, and the expanded use of ADR within and outside tribunal systems
the continuing technological revolution, with its potential to alter dramatically the practice of law and dispute resolution and the operation of tribunals
the increasing number of unrepresented parties appearing before tribunals, and
the growing awareness of the impact of cultural and linguistic differences, Aboriginality and disability. [295]

2.225 These factors characterise an administrative review system which is changing dramatically, and herald a new system in which the demarcation between primary decision makers and tribunals is diminished. Changes within tribunals also undercut hierarchies and modify work practices. The advent of case officers within the Migration Review Tribunal, for example, requires new cooperative arrangements between registry staff and members.

2.226 Leaving aside questions concerning the efficacy of these changes, the new arrangements call for better communication between participants within the administrative justice system and open debate and discussion to afford understanding and acceptance of new practices. The changes can seem threatening. They can be seen to undercut traditional notions of the independence of adjudicators. They challenge notions about where tribunals fit in our justice system -- on the edges of the judicial system or outside the portfolio departments. The new circumstances also require new skills, and members and registry staff require education to assist in developing such skills. [296]

2.227 While the activities of organisations such as the ARC, AIJA and the Australian Institute of Administrative Law already assist in this regard, a new standing institution with a specific brief in this area, such as a council on tribunals, is needed.

The model for a council on tribunals

2.228 There has been recognition in Australia of the need for peak bodies in administrative review to liaise, facilitate the exchange of information and ideas, and secure training and education opportunities for tribunal members and staff. In its Better decisions report, the ARC recommended the establishment of a Tribunals Executive, comprising at least the principal members of each federal merits review tribunal. [297] The Tribunal Executive would identify areas appropriate for cooperation between the tribunals, plan these cooperative arrangements and, where appropriate, organise for the provision of services common to all tribunals. There is obvious merit in such a proposal.

2.229 Principal members already explicitly undertake responsibility to ensure the quality of member's work, via performance standards and performance evaluations or, as in the Migration Act 1958 (Cth), [298] have express authority to give directions to apply efficient processing practices. Cooperation and coordination would be enhanced under the leadership of the President and Executive Members of the divisions of the new federal Administrative Review Tribunal (ART), which will be created by the planned amalgamation of the AAT with other existing specialist tribunals. The federal government also has amended the relevant legislation expressly to give the ARC new functions

(g) to facilitate the training of members of authorities of the Commonwealth and other persons in exercising administrative discretions or making administrative decisions; and
(h) to promote knowledge about the Commonwealth administrative law system. [299]

2.230 However, the Commission also envisages a broader collective of tribunal principal members (the council on tribunals) which might operate much in the same way as the Council of Chief Justices does in relation to the superior courts -- that is, as a national forum for tribunal leadership to consider and secure research on matters of common interest. The membership of the council on tribunals should include the heads of state tribunals engaged in administrative review and the President of the ARC, to ensure that a strong link is maintained with the ARC, which has a continuing responsibility to provide advice to the federal government through the Attorney-General on strategic and operational matters relating specifically to the Commonwealth system of administrative law.

2.231 Some of the areas appropriate for closer cooperation and coordination between tribunals, to which a council on tribunals might contribute, [300] include

developing tribunal codes of conduct and charters
developing benchmarks for best practice in tribunal management
developing policies on tribunal member selection, appointment and induction
developing research and information services for decision making
facilitating tribunal member and staff education, training and professional development, including through staff exchanges
developing guidelines for performance management [301]
improving data collection for reporting and performance management purposes
improving liaison with tribunal user groups and the developing information services for review applicants.

2.232 Another important policy role for the council on tribunals could be in developing appropriate understandings of the independence of review tribunal decision making, given that many contemporary changes can be seen to undercut traditional notions of the independence of adjudicators.

2.233 While the Commission envisages that the focus of the council on tribunals would be on administrative review tribunal functions, the council should include membership from major tribunals such as VCAT and the New South Wales ADT, which also make original decisions in areas such as anti-discrimination, guardianship, tenancy, consumer affairs and professional regulation. Thus, the council on tribunals also could deal appropriately with policy and management issues common to first instance decision making and review, recognising that what has been established over time in the States and Territories [302] is something akin to an alternative or second arm of the judiciary.

2.234 In practice, the establishment of a national council on tribunals may require the support of federal and State Attorneys-General, through the framework of the SCAG. A sensible initial step might be the establishment of an ad hoc committee, including representatives from federal and state tribunals, to develop a detailed proposal.

2.235 The Law Council did not support the establishment of council on tribunals, stating that

Whilst the Law Council agrees with the objective of promoting the sharing and facilitating of experience and professional information amongst Tribunal members, it does not consider that a new and separate body should be established to undertake this. It cannot see why the Administrative Review Council (ARC) could not be reconstituted to undertake this function. The Commission refers to the proposed expanded role and function of the ARC in paragraph 3.128 of Discussion Paper 62. As the Commission suggests in paragraph 3.127, this body could assume the dual roles of determining education training for Tribunals members as well as facilitating communication between Tribunals and primary decision makers. This would need to be done in consultation with the proposed national judicial education institute. [303]

2.236 However, the ARC's own submission supported the establishment of a separate council on tribunals, but with ex officio membership for the President of the ARC. [304] The submission refers to the government's proposed expansion of the statutory functions of the ARC, [305] which would include `facilitating the training of members of authorities of the Commonwealth and other persons making administrative decisions'. The ARC states that, for reasons of resources and expertise, it will likely limit itself to an advisory and monitoring role in the development of relevant training, and should not be involved directly in the operation of such programs.

A society of administrative decision makers?

2.237 In some other jurisdictions, broader membership based bodies [306] also have emerged from collaboration among tribunal heads. In Ontario, SOAR is an organisation of individuals (rather than institutions) drawn from all agencies involved in the administrative justice system, including those that make decisions at first instance, merits review tribunals and tribunals that act as industry regulators. The society's goal is simply the improvement of the administrative justice system.

2.238 The work of SOAR illustrates the kind of contribution such a body might make to augment that of governmental policy advisers such as the ARC. The activities of SOAR have included preparing a statement of principles of administrative justice; a code of professional conduct; a service equity policy; a performance management strategy; and sample rules of practice. SOAR has an education advisory committee and an education coordinator, appointed to establish training programs for associated agencies.

2.239 In Australia, such a broad based body could emerge from the membership and activities of AIJA, perhaps beginning as a division of AIJA. In this context, it is important to note that the phenomenon appears to be developing in Australia of `career tribunal decision makers', who move from one tribunal to another, or work concurrently (part time) for two or more tribunals -- sometimes simultaneously for both state and federal bodies. A membership based body could co-exist easily with the council on tribunals and have a role in

promoting the concept of an administrative justice system and the role of review tribunals
representing the interests of tribunals and tribunal members to governments
acting as a representative body to liaise with government and interest groups to present the case for the model system of administrative justice
facilitating communication between tribunals and portfolio departments and between tribunal executive management and members.

2.240 The Commission would probably favour a membership model in time, but believes that the push for this must come from within the community itself. For the moment, the Commission is content to recommend as a first step the establishment of a council on tribunals.

Recommendation 10. A Council on Tribunals should be established as a national forum for tribunal leadership to develop policies, secure research and promote education on matters of common interest. The membership of the Council on Tribunals should include the heads of federal and State tribunals engaged in administrative review and the President of the Administrative Review Council. The functions of the Council on Tribunals should include: developing performance indicators, charters, benchmarking, and best practice standards in tribunal management, practice and procedure, and professional development; improving and coordinating data collection arrangements; developing research and information services for decision making; and developing policies on tribunal member selection, induction and training.

Accountability measures for federal judicial officers

Introduction

2.241 One of the major thrusts of this report is that the civil justice system operates more effectively and efficiently when judges take a more active role in managing litigation before them. In DP 62 (and see chapter 1) the Commission rejected the complete abandonment of the common law tradition of adversarial justice in the courts in favour of the Continental tradition of inquisitorial practice in the courts. Rather, the Commission noted that the stereotyping of stark differences between these two systems bears little resemblance to the actual position today, in which common law judges take a much more active role in managing litigation (as do the lawyers in civil code jurisdictions) as the two systems move towards each other.

2.242 The Commission's confidence in the ability of federal judges to manage the system (with a concomitantly somewhat more circumscribed, but nevertheless still large and critical, role for lawyers) stems in part from the evident quality and integrity of our bench. In recommendation 8, which calls for the establishment of an Australian judicial college, the Commission acknowledges that an enhanced role for judges must be supported properly with publicly funded programs of high quality judicial education. At the same time, the maintenance of public confidence in the judiciary also requires the development of a transparent system of accountability for judicial officers who are invested with such enormous authority.

Complaints against judicial officers

The trend towards greater accountability

2.243 Any system of accountability for judicial officers must be premised upon the fact that the independence of the judiciary is a cornerstone of our system of justice and democracy.

2.244 Traditionally, judicial accountability is seen to be fully provided for in the common law system by having judges functioning in open courts; hearing both sides of the question in dispute; providing written reasons for their decisions; and subject to review by higher courts. [307] Professor Shetreet's classic study of judicial accountability in England found that this institutional scrutiny is supplemented in practice by other mechanisms (formal and informal) used for `checking' judges, including the parliament, the media, [308] appellate courts, the legal profession and the writings of academic commentators. [309]

2.245 The Commission's consultations also found that informal means of accountability exist, such as peer pressure and the moral and administrative authority of the chief judge of each jurisdiction. [310] For example, Justice Michael Black, Chief Justice of the Federal Court, wrote to the Commission that

The history of the federal judiciary in Australia ... has demonstrated that [within the Chapter III protection of the independence of the judiciary] the traditional mechanisms of accountability and consensual internal governance of courts [have] maintained a system in which bona fide complaints are extremely rare. Within the federal judiciary, self-administration has had a powerful role in enhancing judicial accountability. The governance of the Federal Court is essentially collegiate in character, involving committees of judges and senior registry staff and meetings of the whole Court from time to time, and an Annual Report to Parliament. This form of governance is a powerful, positive influence, through peer and collegiate pressures, upon individual performance and accountability. [311]

2.246 The Commission heard (in general terms) of instances in which judicial officers were called in for counselling, or made subject to special administrative arrangements (for example to complete long delayed written judgments), or chose to resign rather than face the possibility of public scrutiny and removal by parliament -- described by Justice Margaret Beazley as `testament to the power of public disgrace'. [312] The Law Council also has expressed its view that

the most effective way of dealing with perceived recalcitrant judicial behaviour is exposure of that behaviour and peer-pressure. Sanctions in any form (including mandatory judicial education) are neither desirable nor appropriate. By `exposure', the Law Council means through the transparency afforded by the publication of court data which demonstrate judicial performance through indicators such as sitting days, sitting times, numbers of outstanding judgments and periods of time for outstanding judgments. [313]

2.247 Traditionally there has been no formal, transparent process for lodging or investigating complaints against federal judicial officers for poor performance, [314] nor a code of conduct against which judicial behaviour may be measured, nor have there been sanctions available short of removal from office by a vote of both houses of parliament.

2.248 Although bona fide serious complaints against federal judicial officers are very rare, and complaints often confuse disappointment over the outcome with impropriety on the part of the court, [315] the existence of proper complaint procedures is important both for reasons of providing a further measure of democratic accountability and providing the information needed to make continuous improvements to systems. It should be recognised that

[c]omplaints are a measure of client dissatisfaction, but the inverse does not necessarily apply -- low levels of complaints may not equal high levels of satisfaction. Many organisations make assumptions based on negative data, particularly complaints. It is very difficult to develop a client-focused organisation without good quality information on client satisfaction. Measures of satisfaction should be both direct and detailed enough to indicate which areas of process, product or service require most urgent attention. [316]

2.249 Over the past few decades, measures ensuring transparency and accountability have become commonplace in the public sector (as well as those parts of the private sector subject to the substantial regulation in the public interest), with the advent of freedom of information laws; [317] Ombudsman's offices, [318] `watchdog' commissioners associated with the Human Rights and Equal Opportunity Commission [319] and other bodies, and specific industry ombudsman's offices. [320]

2.250 In recent years, courts have come under pressure to operate with a greater degree of efficiency, transparency and accountability. Chief Justice Murray Gleeson has acknowledged both the imperatives and the difficulties.

Our society attaches importance to accountability on the part of all governmental institutions. People seek ways of evaluating the performance of judges at a personal level, and of courts at an institutional level. This is appropriate, so long as the mechanics of evaluation are not permitted to define the objectives of the courts ... [321]

All aspects of government are subjected to demands for accountability, and the judicial branch is no exception. There are, however, two issues that need to be addressed. First, reconciliation of the requirements for accountability with the constitutional imperative of judicial independence can give rise to difficulties. Secondly, there is little agreement upon the appropriate measures of court performance ...

The most important measure of the performance of the court system is the extent to which the public have confidence in its independence, integrity and impartiality. [322]

2.251 In DP 62, the Commission canvassed the overseas experience. For example, in the United States, [323] all the states have judicial codes of conduct [324] and commissions or councils to investigate and determine complaints about judicial conduct. [325] In Canada, some jurisdictions have developed judicial codes of conduct, a Canadian Judicial Council operates federally, and there are also provincial judicial councils. [326]

2.252 In the United Kingdom, the 1993 Royal Commission on Criminal Justice expressed concern at the absence of any satisfactory monitoring of judges' work to ensure that standards are maintained, and recommended the institution of `an effective formal system of performance appraisal'. [327] The Woolf report on the civil justice system [328] made similar recommendations, arguing that appraisal would help promote performance standards and consistency of decision making. [329]

2.253 Within Australia, New South Wales has pioneered an American-style system of judicial accountability, through its Judicial Commission of New South Wales (JCNSW). The JCNSW is an independent, statutory corporation established in 1986 under the Judicial Officers Act 1986 (NSW). [330] In terms of its conduct function, the JCNSW receives all complaints made against NSW judicial officers, and is required to conduct a preliminary investigation of all formal complaints. [331] On the basis of this investigation, the JCNSW may summarily dismiss the complaint; classify the complaint as `minor'; or classify it as `serious'.

2.254 A minor complaint may be referred to the appropriate head of jurisdiction or to a Conduct Division, which consists of a panel of three judicial officers, or two judicial officers and a retired judicial officer. A complaint is regarded as `serious' where, if substantiated, the grounds would justify parliamentary consideration of the removal from office of the judicial officer in question.

2.255 In cases where a complaint is wholly or partly substantiated, and the Conduct Division is of the view that the matter may justify parliamentary consideration of the removal of the judge or magistrate from office, the NSW Attorney-General is required to lay the report before both houses of parliament. Unlike some American judicial commissions, the JCNSW has no power to impose penalties or otherwise discipline judicial officers. The JCNSW ordinarily does not consider allegations of criminal conduct (for example, corruption), which are left to prosecuting authorities or the Independent Commission Against Corruption. All serious complaints must be referred to a Conduct Division, which investigates the matter and prepares a report to the Governor setting out its conclusions.

2.256 In Queensland, the Fitzgerald report recommended the establishment of a Criminal Justice Commission (CJC), with an Official Misconduct Division which would, subject to authorisation by the CJC Chairman,

investigate complaints of official misconduct in relation to judges which are sufficiently serious to warrant removal from office, if established, subject to appropriate conditions and in accordance with appropriate procedures, settled in consultation with the Chief Justice. [332]

2.257 This recommendation was implemented in the Criminal Justice Act 1989 (Qld) s 29(4), in the following terms.

To the extent that an investigation by the [Official Misconduct] division is, or would be, in relation to the conduct of a judge of, or other person holding judicial office in a court of the State, the authority of the division to conduct the investigation --

(a) is limited to investigating misconduct such as, if established, would warrant his or her removal from office;
(b) shall be exercised by the commission constituted by the chairperson;
(c) shall be exercised in accordance with appropriate conditions and procedures settled in continuing consultations between the chairperson and the Chief Justice of the State.

2.258 A lengthy definition of `official misconduct' is contained in s 32, but generally refers to conduct which, directly or indirectly, adversely affects (or could adversely affect) `the honest and impartial discharge of functions or exercise of powers or authority'. Section 28 makes clear that

(1) A report of the CJC is not sufficient ground for an address of the Legislative Assembly [333] for removal from office of a Supreme Court or District Court judge.
(2) If the Assembly resolves that further action in respect of a judge should be taken having regard to a report of the commission, it shall --

(a) appoint a tribunal of serving or retired judges of any 1 or more of the State and Federal superior courts of Australia to inquire into the matter dealt with in the commission's report in relation to the judge; and
(b) defer any other further action until the findings and recommendations of such tribunal are known.

(3) When such tribunal is appointed the commission shall furnish to it such number of copies of its report as the tribunal requires and all material in the commission's possession relevant to the subject of the tribunal's inquiry.

2.259 In 1991, the Australian Bar Association released a statement on `the independence of the judiciary', [334] which recommended that machinery ought to be established by statute for the preliminary investigation of complaints against judicial officers. [335] The recommended process [336] was for the convening of a tribunal, when required, comprised of not less than three judges or retired judges. The Australian Bar Association noted that disgruntled litigants invariably would be a problem in this area, so proper vetting mechanisms must be in place to filter out complaints which are frivolous, vexatious, or lacking in substance. Where the tribunal finds that an allegation is substantiated and could justify removal, its report would be placed before both houses of parliament. The misbehaviour in question should be limited to that which would undermine public confidence in the fitness of the judge to perform judicial functions, and should be detailed as specific allegations. Removal of the judicial officer would occur in keeping with constitutional requirements; that is, upon an address by the two houses of parliament to the Governor (or, federally, the Governor-General).

The special position of federal judges under the Constitution

2.260 Section 72 of the Constitution provides that

The Justices of the High Court and of the other courts created by the Parliament --
...
(ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity. [337]

No formal complaints procedure is provided for elsewhere in the Constitution, nor in any of the Acts establishing the various federal courts.

2.261 The Australian Constitutional Commission, which reported in 1988, [338] considered the appointment and removal of federal judges. The Constitutional Commission recommended

That the Constitution be altered to provide

(i) that there be a Judicial Tribunal established by the Parliament to determine whether facts established by it are capable of amounting to proved misbehaviour or incapacity warranting removal of a judge; and that the Tribunal should consist of persons who are judges of a federal court (other than the High Court) or of the Supreme Court of a State or a Territory;
(ii) that an address under section 72 of the Constitution shall not be made unless:

the Judicial Tribunal has reported that the facts are capable of amounting to misbehaviour or incapacity warranting removal and
the address of each House is made no later than the next session after the report of the Tribunal. [339]

2.262 In relation to the conduct which would warrant the removal of a judge, the Constitutional Commission reported that this should include

misconduct in carrying out the duties of office and any other conduct that, according to the standards of the time, would tend to impair public confidence in the judge or undermine his or her authority as a judge. [340]

2.263 The Constitutional Commission's recommendations in this area did not form part of any of the four referendum questions put to the Australian people, and convincingly defeated, in 1988; nor have the recommendations since been taken up in any other constitutional reform initiatives.

2.264 In DP 62, the Commission recognised that

The balancing act for courts may be more difficult than for most other public institutions. Great weight must be accorded to maintaining judicial independence, while at the same time moving the judiciary to accept an increased level of scrutiny and an increased premium placed on efficiency. The experience in other jurisdictions suggests that this balance can be achieved. [341]

2.265 Accordingly, the Commission proposed for consideration that

The Commonwealth should establish an independent judicial commission, modelled on the Judicial Commission of New South Wales, to receive and investigate complaints against federal judges and magistrates. [342]

2.266 However, apart from the normal delicate balancing act involved, the Commission now accepts that there are special requirements which arise in Australia under Chapter III of the Constitution with respect to the federal courts, and which were not given sufficient weight in DP 62.

2.267 The Federal Court of Australia's submission pointed out that

There are at least two fundamental problems with respect to the establishment of a judicial commission with general `jurisdiction' over complaints about the federal judiciary. The first involves Chapter III of the Constitution and the second, related to the first, involves the operation of the appellate process.

Chapter III of the Constitution and the principles of independence of the judiciary that it reflects and supports, provide substantial limitations upon what can validly be done by way of the establishment and operations of a Judicial Commission. Secondly, where complaints concern essentially matters that (if they have substance) fall within the appellate jurisdiction of a court they must be dealt with in the appellate process. With some possible exceptions (presently irrelevant) the appellate process is the exclusive method for correcting judicial errors, including alleged errors by reason of matters such as bias or apprehended bias. Close analysis will reveal that the range of matters that, on the widest view, could permissibly be the subject of an inquiry by a body operating anywhere within the reach of Chapter III of the Constitution are limited indeed.

The nature and extent of those limitations can readily be tested by imagining specific complaints in relation to matters that would not lead to the imposition of the constitutional sanction of removal from office, and then asking what a Judicial Commission might lawfully be authorised to do in respect to those specific complaints. The Court would suggest that the answers will point to the merit and effectiveness of [an] internal, collegiately supported, mechanism ... It all comes back, of course, to the necessary independence of the judiciary as protected by Chapter III of the Constitution. The history of the federal judiciary in Australia, however, has demonstrated that within that protection the traditional mechanisms of accountability and consensual internal governance of courts have maintained a system in which bona fide complaints are extremely rare.

Within the federal judiciary, self-administration has had a powerful role in enhancing judicial accountability. The governance of the Federal Court is essentially collegiate in character, involving committees of judges and senior registry staff, meetings of the whole Court from time to time, and an Annual Report to Parliament. This form of governance is a powerful, positive influence, through peer and collegiate pressures, upon individual performance and accountability.

In substance, therefore, the Court suggests that the Commission should recommend examination of a proposal to establish a statutory framework for constituting a Federal Judicial Commission, but only as and when required to consider bona fide complaints which, if made out, might warrant the invocation of constitutional procedures for removal from office. So far as other complaints are concerned, it is the Court's view that consistently with the Constitution and with appropriate allocation of resources, other complaints should be dealt with through a transparent and accountable complaints mechanism within the Court itself. [343]

2.268 The Law Council noted that, at the time s 72 was framed, `there was one Chapter III court contemplated, namely the High Court of Australia, with three justices'. [344] However, as discussed above, there are currently 109 federal judicial officers (Chapter III judges) serving in the High Court, the Federal Court and the Family Court, [345] with an additional 16 magistrates scheduled to be appointed to the new Federal Magistrates Court. [346]

2.269 The Law Council expressed concern at the lack of clear, standing procedures to deal with serious allegations against federal judicial officers, but also cautioned against the establishment of a judicial commission which might run foul of Chapter III guarantees and processes.

There are no formal complaints procedures provided for in either the Constitution or the legislation establishing the federal courts. As has happened in the past, special legislation could be enacted (albeit with some Constitutional uncertainty) for the provision of assistance to the Houses of Parliament when they are engaged in a Section 72 Inquiry.
In light of the federal experience with the late Justice Murphy and the more recent experience in New South Wales with Justice Bruce, the Law Council considers that Section 72 of the Constitution is clearly inadequate to meet the problems of complaints against the judiciary, especially in the context of the significant increase in the number of Chapter III judges. This is particularly the case, if no procedure is provided to improve the ways in which the two Houses of Parliament discharge their duties under Section 72.
The large question is whether a standing body should be created by legislation to interpose between the complaining public and the Houses of Parliament. Such a proposal should not be assumed to be possible under the Constitution.

Even if a federal judicial complaints body were established, its effectiveness in receiving and investigating complaints must be clearly understood. The Law Council cautions:

`Statutory complaint and disciplinary authority such as the New South Wales Judicial Commission with all the risks they present to judicial independence, may be the only practical expedient. But they are a very crude method and are a form of retrospective discipline that does not assist the individual litigant'. [347]
On balance, the Law Council agrees with the Commission that there is a need to establish a federal body to receive and investigate complaints against judicial officers. The Law Council is not averse to the federal judicial complaints body being modelled on the conduct division of the Judicial Commission of New South Wales ... This is on the basis that the role of any federal judicial complaints body would be to report to and to inform both Houses of Parliament. [348]

2.270 A further complication is that any refined proposal for a standing judicial commission would probably need to exclude the justices of the High Court. As the Law Council stated in its submission

The justices of the High Court of Australia should be excluded expressly from any legislation establishing a federal judicial complaints body.

This is because of the High Court's essential apex role in Australia's justice system. Given the High Court's role under the Commonwealth Constitution, the Law Council considers it singularly inappropriate that the High Court justices should be placed in a position where they may have to consider a justiciable complaint against one of their number, arising from a complaint made about that High Court judge to the federal judicial complaints body. Even worse, by analogy with the litigation [in relation to Justice Bruce and the JCNSW] the prospect of the High Court judicially reviewing the work of a federal judicial complaints body in relation to one of its own number, is too appalling to contemplate.

The Law Council considers it imperative that the conduct of a High Court judge should remain firmly for sole consideration and scrutinisation by the two Houses of Parliament. [349] In the Law Council's view, given that a federal judicial complaints body would form part of the Executive, it is essential for the true maintenance of the separation of powers doctrine, that the power to recommend removal of a High Court justice is not delegated to the Executive. [350]

2.271 In the course of the Commission's consultations, senior judges (including some heads of jurisdiction) also cast serious doubt on the constitutional viability of establishing a standing judicial commission for the federal courts. [351] Although the Commission believes that it is arguable that a judicial commission, with carefully drafted enabling legislation, could pass constitutional muster, it is inevitable that its status would be challenged upon its first use, and would become drawn into the controversy over the potential removal of a judicial officer -- thus adding complexity and uncertainty to the proceedings rather than facilitating a smooth process.

2.272 The Commission does not believe that the move away from consideration of a standing federal body designed along the lines of the JCNSW, as suggested in DP 62, represents a significant retreat from achieving better accountability. For example, until recently there was only one officer at the JCNSW dedicated to handling complaints, [352] and it is still the case that there is no recurrent funding available for the establishment of a Conduct Division each time there is a `serious complaint'-- this must be done on an ad hoc basis. The existence of a mechanism for the appointment of a committee of inquiry, where appropriate, is critical and this is dealt with in recommendation 12, below.

The Commission's preferred arrangements for judicial accountability

2.273 As a consequence of the submissions and consultations, the Commission has reshaped its approach in this area, endeavouring to fashion a complaints and discipline system which meets all of the needs for transparency, improved accountability, and certainty of process, and which is more clearly compatible with the system of tenure and removal of federal judges set down in Chapter III. In serious cases, the aim of the suggested new arrangements is to enhance -- and certainly to avoid compromising -- the location of the entire removal process in the parliamentary chambers, with those houses remaining masters of their own procedures. Accordingly, the Commission has refrained from recommending anything which could be seen to limit the capacity of the chambers to seek information or advice from outside, to consider matters in committee, or to convene committees jointly -- flexible powers presently possessed by the House of Representatives and by the Senate. As contemplated in the Constitution, debate and decision making about the removal of a federal judge will be matters to be conducted openly by the people's elected representatives, rather than by any part of the executive government (as a judicial commission would be). Elected representatives remain free to enlist whatever technical assistance (for example, from current or retired judges, or others) they may regard as useful from time to time.

2.274 Below, the Commission outlines a recommended two-stage process for ensuring greater judicial accountability, based upon

the development of transparent internal systems of complaints handling by the various federal courts and
the development by parliament of a mechanism to ensure the smooth transfer and handling of serious complaints against federal judicial officers, such as may warrant removal from office.

Developing inhouse mechanisms for handling complaints

2.275 The Commission, in an earlier report, recommended that federal courts and tribunals develop court charters (or `service charters') to promote a more systematic and comprehensive approach to the delivery of services with a client focus -- particularly, but not limited to, the special needs of women and children. [353] The federal Access to Justice Advisory Committee (AJAC), chaired by Mr Ron Sackville QC (now Justice Sackville of the Federal Court), considered the matter of court charters in some detail, [354] and recommended that

[e]ach federal court and tribunal should develop and implement a charter specifying standards of service to be provided to members of the public coming into contact with the court or tribunal. [355]

2.276 Among other things, AJAC proposed that court charters should deal with `timeliness and efficiency in the delivery of services, including the delivery of judgments', `courtesy towards members of the public', and `access to the courts'. [356] AJAC also recommended that a report on implementation and review of the standards should form part of the annual report of the relevant court or tribunal. [357]

2.277 The federal courts and tribunals have begun work in this direction. For example, the Family Court launched its service charter in April 1999, developed in accordance with the Government's Charter of Public Service in a Culturally Diverse Society, and containing `qualitative performance standards against which service standards and the quality of relationships with clients can be evaluated'. [358] The Federal Court has for some years had a published standard for the timely delivery of judgments and, since 1992, one of the stated objectives of the Court (as noted in successive annual reports) includes the resolution of disputes according to law `promptly, courteously and effectively'.

2.278 It is now commonplace in Australia for both public agencies and private sector industry associations to develop such service charters and industry codes of conduct, which typically include the specification of complaints handling and dispute resolution processes.

2.279 A national standard for the management of complaints, AS 4269, [359] already has been developed in Australia, and has gained widespread acceptance and use. Although oriented towards the resolution of consumer disputes, the standard is sufficiently generic (and adaptable) to have application to systems designed for handling complaints against judges, judicial officers and court staff. In developing protocols for such complaints handling, as the Commission recommends below, federal courts and tribunals should have regard to AS 4269.

2.280 For these purposes, relevant elements from AS 4269 include

a commitment to efficient and fair resolution of complaints, set down in writing, and an organisational culture which acknowledges consumers rights to complain and actively solicits user feedback
an ethos of fairness
adequate resources devoted for this purpose
well publicised rights and processes
accessibility (in all senses, including physical, linguistic, and financial)
assistance for the formulation and lodgment of complaints
responsiveness -- complaints dealt with quickly and courteously
proper data collection systems
attention to systematic and recurrent problems, as well as to the immediate complaint or dispute
a transparent and accountable system, including a requirement to report regularly.

2.281 In DP 62, the Commission noted that

The federal courts have established their own informal complaints mechanisms with usually the head of the jurisdiction ultimately responsible for deciding the response to a complaint and any subsequent action. [360]

2.282 The report Courts and the public, [361] produced by Professor Stephen Parker for the AIJA, looked at (among other things) complaints handling systems -- although mainly in the context of complaints against court staff and operations, rather than against judicial officers. The report recognised that while complaints mechanisms are important sources of information for courts, such mechanisms had not yet been widely established on a formal basis in Australia. The report noted that `courts may be responsive to complaints and they may objectively learn from them, but complaints mechanisms are not always formally established as part of a service improvement system' and many courts do not actively advertise the fact that they do actually have a complaints system in place. [362] Parker recommended that all courts should have a complaints system for court users which also clearly sets out how complaints will be dealt with. [363]

2.283 In recent times, the federal judicial system has come to recognise the importance of establishing more formal complaints mechanisms and systems. The AAT and the Family Court have led the way in this respect. A recent paper by the Family Court's General Manager for Corporate Services, Mr Andrew Phelan, outlines both the nature of the system and the underlying philosophy.

The Court defines a complaint as `an expression of dissatisfaction concerning its policy, practices, charges or service delivery'. Complaints are not limited to matters of administration; the Court considers complaints about judicial processes as well.
Complaints may be received directly by the Court or referred by another agency or department such as the Attorney-General's Department, the Ombudsman's Office or as a representation through a local Member of Parliament. Most complaints are dealt with at the Registry or Area Office level. More complex complaints and representations are forwarded to the Chief Executive Officer who assesses the matter and, if necessary, refers the matter for a report and draft response.
The Court takes complaints very seriously and, depending on the nature or seriousness of the issues raised, the Chief Justice or the Chief Executive Officer may respond to the complaint. The Court employs a full-time Complaints Officer, working direct to the Chief Executive Officer, and maintains a central database register of all complaints received.
The Court believes that having a credible and responsive complaints system is essential to the maintenance of community confidence and understanding. Credibility in dealing with client feedback can also facilitate strong responses to unreasonable complaints. The Court's comprehensive and strategic focus on using client feedback also tends to objectify complaints and produce a constructive approach to improving processes. The result is a tendency to de-personalise complaints, the nature of the jurisdiction notwithstanding ...
While many people would object to Courts being described as 'businesses', Courts which are self-governing (such as the Family Court of Australia) increasingly must act in a business-like way. Indeed, many alternatives to Courts are developing and progressing rapidly; and, in many areas or processes traditionally regarded as Court monopolies, clients now do have real alternatives. While business analogies can be overstated, it is the view of the Family Court of Australia that community confidence and understanding is an essential goal and that its achievement requires embracing client views and values across the range of strategic, performance measurement, process improvement and complaints handling processes.
The experience of the Family Court of Australia is that these processes do not in any way diminish or impugn judicial independence. While the Courts will receive extreme or unreasonable viewpoints, credibility in dealing with all viewpoints should enhance community confidence and understanding. However, where Courts do not deal meaningfully with client concerns or views, they run the risk that others may establish mechanisms to deal with public comment or establish alternative mechanism to address client needs. [364]

2.284 The submission from the Federal Court is also positive in this regard.

... the Court favours the development of a broad complaints mechanism with full collegiate support within the Court. Transparency of such a mechanism can be achieved by publication of the protocol establishing it and defining its procedures and notification to the complainant in each case of the outcome of a complaint. Models for this mechanism exist already within the Family Court and the Administrative Appeals Tribunal. A Complaints mechanism so established, could work in conjunction with and be similar in nature to, the complaints mechanism now being set up by the Federal Court as part of the development of its Service Charter.
There are procedures already in place in the Federal Court, and in other courts, to deal with concerns that arise from time to time in delivering reserved judgments. These concerns are not, of course, necessarily `complaints', although they may be such. A published protocol (recently republished) provides that litigants who have a concern about a reserved judgment can raise the matter with the President of the relevant Law Society or Bar Association who will then raise the matter (without identifying the inquirer) with the Chief Justice. The Chief Justice then raises the matter with the judge and replies to the Law Society or Bar Association. This is a transparent and effective procedure. It works in conjunction with an already published performance standard for the delivery of judgments. It places the ultimate responsibility for solving the problem upon the judge concerned and the Chief Justice. In the case of the Chief Justice, he/she has, of course, ultimate responsibility for the management of the Court's lists and the power to reallocate cases, if necessary. The mechanism works with the full cooperation of the law's professional bodies throughout Australia. [365]

2.285 Interestingly, the Federal Court did not identify here its Individual Docket System (IDS) as an important aspect of the Court's commitment to transparency and accountability. The Commission believes nevertheless that this may be the case -- that is, IDS (or other effective case management strategies) can play a role in ensuring (and recognising) effective performance and enabling court managers to identify more readily problems with judicial performance. [366]

2.286 The Commission leaves to the federal courts and tribunals the task of defining, to suit their own circumstances, what is meant by a bona fide `complaint'. As a general matter, the term should not comprehend mere expressions of disappointment or disagreement with a decision or outcome (or the state of the substantive law), in which no discernible impropriety is alleged. Similarly, matters which really amount to an allegation of appellable error will be outside any formal complaints handling process. The appropriate means for dealing with these and for providing an effective remedy lie within the appellate process -- a transparent, public process leading to a decision in writing.

2.287 It may be that the single term `complaint' is too blunt an instrument for these purposes. At one level, any information provided to courts and tribunals which apprises them of dissatisfaction with their operations, and enables to improve the quality of their systems, is valuable. These sorts of complaints about court systems and processes may be distinguished from complaints about the performance of individual judges, judicial officers and members which may reflect on the fitness or capacity of the person for such office. The protocols developed by the courts and tribunals must be able to deal with both categories of `complaint', but should be designed to distinguish clearly between them.

2.288 In accordance with AS 4269 and best practice in this area, court complaints handling mechanisms should build in a `loop' which permits courts to learn from the complaints experience and to effect improvements in processes (including education and training) as a result.

2.289 As an incident of the need for transparency, the complaints handling experience of federal courts and tribunals should be published in their annual reports, with detailed information about the number of complaints received, the categories of complaints (for example, allegations of delay in delivering judgment, bias, discourtesy), outcomes, and any referrals to Parliament under s 72(ii) of the Constitution. The Family Court's format for the reporting of these matters provides a useful model for future reference and further refinement. [367]

Recommendation 11. Each federal court and review tribunal should develop and publish a protocol for defining, receiving and handling bona fide complaints against judges, judicial officers and members, as well as complaints about court systems and processes.
In its annual report to Parliament, each court and review tribunal should provide statistical details of its complaints handling experience under its protocol. This should include the number of complaints received, to the extent possible a breakdown by categories (for example, allegations of delay in delivering judgment, or discourtesy), and outcomes.
An Australian Judicial College and a Council on Tribunals (see recommendations 8 and 10) should have regard to these reports in developing and refining orientation, education and training programs.
A Parliamentary protocol for handling serious complaints

2.290 As discussed above, the preceding recommendation is predicated on the Commission's present view that the terms of the Constitution prevent the development in Australia of any formal mechanisms for disciplining federal judicial officers by way of interposing a judicial commission or other body which is a creature of the executive branch of government. Rather, s 72(ii) of the Constitution limits such formal discipline to removal from the bench by the `Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity'.

2.291 Thus, the Commission has recommended above, for the great run of matters which fall far short of any thought of removal, a system which involves the federal courts and tribunals in developing their own `best practice' systems and publicly reporting their complaints handling experience.

2.292 For those very rare matters which do raise serious issues about `misbehaviour or incapacity', no standing procedures exist to ensure the smooth handling and effective consideration of the issues. Ad hoc arrangements must be determined in each case. For example, the federal Parliament had to enact special legislation to establish a statutory body, comprised of retired judges, to inquire into and report to Parliament on allegations made against the late Justice Lionel Murphy, of the High Court of Australia. [368]

2.293 The Commission believes it is important for the federal Parliament to establish a general standing procedure in advance of any controversy or `crisis atmosphere' surrounding a particular allegation. The danger in the present position is that when a particular case arises, the process itself becomes a major issue, with the potential for the merit or otherwise of the substantive allegations to become lost in the skirmishing. Every interim decision in these circumstances has the potential for added controversy -- such as whether to establish an advisory committee to investigate and report, whether to use sitting or retired judges (or others) for this purpose, the particular identity of the persons appointed (for example, with respect to any prior political affiliations they may have had, or any political or social views expressed -- including any views about the `proper' role of judges), the powers of such a committee to compel evidence, whether it operates in the open or is closed to the public, and so on.

2.294 Given that it will generally be the case that Parliament will seek outside assistance in fulfilling its constitutional role, the Commission suggests that consideration be given to whether a protocol or standing order should be developed which provides for the establishment of an independent committee, drawn from a panel of distinguished retired judges (or other suitably qualified persons), to investigate the complaint and prepare a report to assist parliament with its deliberations. The existence of such a panel, composed of persons who already have the confidence of the nation, would be reassuring at a time of inevitable stress upon our institutions.

2.295 The Commission has not sought to define further, beyond the very general terms of s 72(ii), the nature of a `serious complaint' for these purposes. Rather, this should remain within the debating and deciding competence of the two houses of Parliament, and exclusively so. [369] The extreme rarity of inquiries under s 72(ii) in Australia suggests that, in practice, the distinction is well understood between matters which cause some unease with a judge's performance on the bench or conduct outside of office, and matters which are so serious as to warrant consideration of removal.

2.297 The Federal Court's submission supports the Commission's preference for these arrangements, rather than a standing federal judicial commission.

The Court has no difficulty in principle with the establishment of a statutory framework for constituting, from time to time as required, a Judicial Commission to provide advice to Parliament in relation to any bona fide complaint which, if made out, would warrant the invocation of constitutional procedures for removal from office. The formulation of the detail of the legislative framework for such a structure would require close attention to a range of difficult questions. The functions of any such body would have to be consistent with the provisions of Chapter III of the Constitution, reflecting the constitutional framework for the independence of the judiciary and the separation of powers. Attention would have to be given to the way in which any body within such a structure would be constituted and to the provision of a filtering mechanism so that the exceptional procedures leading to its constitution were only invoked in the cases for which they were intended. The Court does not accept however that under current constitutional arrangements a standing judicial commission authorised to entertain complaints generally against federal judges would have any constitutionally meaningful role. [371]

Recommendation 12. The federal Parliament should develop and adopt a protocol governing the receipt and investigation of serious complaints against federal judicial officers. For these purposes, a `serious complaint' is one which, if made out, warrants consideration by the Parliament of whether to present an address to the Governor-General praying for the removal of the judicial officer in question, pursuant to s 72 of the Constitution.
Parliament should give consideration to whether, and in what circumstances, the protocol might provide for the establishment of an independent committee, drawn from a panel of distinguished retired judges (or other suitably qualified persons), to investigate the complaint and prepare a report to assist Parliament with its deliberations. Such a provision should not derogate from the flexible powers presently possessed by the two Houses to fashion and control their own procedures.

ENDNOTES

[1.] Australian Law Reform Commission Issues Paper 21Review of the adversarial system of litigation: Rethinking legal education and training Sydney 1997 (ALRC IP 21). This paper canvassed education and training for decision makers in courts and tribunals, for lawyers, and for non lawyer participants in the litigation system (such as expert witnesses and unrepresented litigants).

[2.] Australian Law Reform Commission Discussion Paper 62Review of the federal civil justice system Sydney 1999 ch 3 (ALRC DP 62).

[3.] Law CouncilSubmission 196.

[4.] Law CouncilSubmission 375.

[5.] For example NRMASubmission 81.

[6.] See D Ipp `Opportunities and limitations for change in the Australian adversary system' in H Stacy and M Lavarch (eds) Beyond the adversarial system Federation Press Sydney 1999, 68, 84; D Schon The Reflective Practitioner Basic Books New York 1983; and L Olsson `Combating the warrior mentality' in C Sampford et al (eds) Educating lawyers for a less adversarial system Federation Press Sydney 1999, 2, 6-8. There is a considerable literature on the socialising effects of legal education and training. See eg G Rathjen `The impact of legal education on the beliefs, attitudes and values of law students' [1976] 44 Tennessee Law Review 85, 94, which suggests that `law school does serve to alter legal orientations, legal ideologies and legal values'. R Bush `Dispute Resolution Alternatives and the Goals of Civil Justice: Jurisdictional Principles for Process Choice' [1984] Wisconsin Law Review 893, 1002, suggests a causal link between `the habits of thinking and assumptions which legal training inculcates in lawyers', including the importance of `thinking like a lawyer', which `produces strong support for adjudication and great suspicion about mediation'. In Australia, D Anderson et al `Law and the making of legal practitioners' in R Tomasic (ed) Understanding Lawyers Law Foundation of NSW Sydney 1978, 190, report survey findings indicating that there is a shift in the course of legal education from `a community centred orientation to one which was profession centred', manifest in attitudes about who should assess the effectiveness of legal services, regulate legal practitioners, and so on. In the Pearce Report's survey of law graduates, the predominant answer to the question about how law school had influenced their values, was that it made them `more cyncial' (54%). This was followed by `more practical' (52%), and `more politically aware' (39%). Only 10% of graduates reported that legal education made them `more idealistic': D Pearce et al Australian law schools: A discipline assessment for the Commonwealth Tertiary Education Commission AGPS Canberra 1987, appendix 5, 195, table 5.19 (Pearce report).

[7.] ALRC DP 62 para 3.4, citing A Carr-Saunders & P WilsonThe professions 1933, 28 cited in D Weisbrot Australian lawyers Longman Cheshire Melbourne 1990, 4-6.

[8.] See eg J Brunne `The reform of legal education in Germany: the never-ending story and European integration' (1992) 42 Journal of Legal Education 399, 402-4; and see R Abel and P Lewis (eds) Lawyers in society -- The civil law world Berkeley University of California Press 1988.

[9.] See R Abel and P Lewis (eds)Lawyers in society -- the civil law world Berkeley University of California Press 1988; and R Abel The legal profession in England and Wales Oxford Basil Blackwell 1988. For an account of an early attempt at university legal education in Canada, see W Pue `"The disquisitions of learned judges": Making Manitoba lawyers 1885-1931' in G Baker and J Phillips (eds) Essays in the history of Canadian law Vol III University of Toronto Press Toronto 1999, 512-60.

[10.] See eg J Merryman `How others do it: The French and German judiciaries' (1988) 61Southern California Law Review 1865, 1874. See also R Abel and P Lewis (eds) Lawyers in society -- The civil law world Berkeley University of California Press 1988.

[11.] See D WeisbrotAustralian lawyers Longman Cheshire Melbourne 1990, 124 and following. These arrangements were recommended in Australia by the Report of the Committee on the Future of Tertiary Education in Australia Government Printer Canberra 1964 para 52-56 (the Martin report); and subsequently in the United Kingdom in the Report of the Committee on Legal Education (Cmnd 4595) HMSO London 1971 , para 100 (the Ormrod report).

[12.] It is, of course, the content of the program rather than the title of the degree which is critical. Some universities offer other degree programs at the Bachelor's level (eg the Bachelor of Legal Studies), or less commonly at the postgraduate level (eg Master of Legal Practice), which also are accepted for admission purposes.

[13.] Arts-Law, Commerce-Law and Science-Law are still the most common programs, but the range of possible combinations has grown to include engineering, social work, education, communications, and international studies.

[14.] In recognition of this, American law schools phased out the LLB degree in the 1960s and replaced it with the `Juris Doctor' (JD) degree. The approach in civil law Canada (ie Quebec) is more akin to the UK model.

[15.] For example, the College of Law affiliated with the University of Technology, Sydney (UTS), but has since disaffiliated. The equivalent program in South Australia was affiliated with the South Australian Institute of Technology (SIT), now part of the University of South Australia, but the University withdrew from the PLT program in 1998 and it is now conducted by the Law Society of South Australia.

[16.] For example the programs at Wollongong University, UTS (after disaffiliation with the College of Law), Queensland University of Technology, Bond University and Monash University.

[17.] For example the programs at Newcastle University and Flinders University.

[18.] A StewartSubmission 327. See para 2.15 below for a more complete discussion of this point.

[19.] ALRC DP 62 para 3.10.

[20.] In association with the University of Sydney's Law Extension Committee.

[21.] For example in Queensland, the Northern Territory, Tasmania and Western Australia.

[22.] See para 2.14 and following and para 5.201-5.214 regarding university clinical programs.

[23.] D Pearce et alAustralian law schools: A discipline assessment for the Commonwealth Tertiary Education Commission AGPS Canberra 1987 (Pearce report).

[24.] At Victoria University of Technology and Central Queensland University.

[25.] ALRC DP 62 para 3.13.

[26.] id para 3.14.

[27.] See the Statement of Australian Law Deans, attached as appendix 3 to the Pearce report.

[28.] ALRC DP 62 para 3.16.

[29.] On the desirability of teaching ethics in a clinical context, see W Simon `The trouble with legal ethics' (1991) 41Journal of Legal Education 65; W Simon The practice of justice: A theory of lawyers' ethics Cambridge Harvard University Press 1998; and A Hutchinson `Legal ethics for a fragmented society: between professional and personal' (1998) 5 International Journal of the Legal Profession 175.

[30.] ALRC DP 62 para 3.10-3.12. The other law schools with elective clinical programs which involve operation of a community legal centre (and receive substantial Commonwealth funding) are the Universities of New South Wales, Monash, Murdoch and Griffith. The University of Western Australia is currently operating an experimental program, with the encouragement of the WA Supreme Court, which involves law students assisting (under supervision) with criminal appeals in cases in which legal aid is not available or insufficient. Other law schools, for resource and pedagogical reasons, have chosen to develop placement programs rather than clinical programs; for example, Wollongong and Sydney. Many law students also are volunteers with community legal centres.

[31.] Specific issues and initiatives with respect to the current state of skills teaching in Australia are set out in ALRC DP 62 para 3.26-3.43.

[32.] See also Lord Chancellor's Advisory Committee on Legal Education and Conduct First report on legal education and training HMSO London 1996, [15.]

[33.] American Bar AssociationLegal education and professional development -- An educational continuum (Report of the task force on law schools and the profession: Narrowing the gap) ABA Chicago 1992 (MacCrate report). See also E Clark `Legal education and professional development -- An educational continuum' (1996) 14 Journal of Professional Legal Education 227; R Stropus `Mend it, bend it, and extend it: The fate of traditional law school methodology in the 21st century' (1996) 27 Loyola University Chicago Law Journal 449.

[34.] MacCrate report 139-40.

[35.] ibid.

[36.] The Consultative Committee of State and Territorial Admitting Authorities, headed by Justice Priestley of NSW, compiled a list of compulsory subject areas for academic legal study, colloquially known as `the Priestley 11', which individuals must complete in order to fulfil admission requirements -- and this includes `Professional Conduct'. Although this does not directly affect law school curricula, universities are under pressure to provide those subjects to graduates in order to satisfy academic requirements to practice law. The availability and content of professional responsibility courses do vary from law school to law school, however.

[37.] ALRC DP 62 para 3.23.

[38.] Canadian Bar Association Systems of Civil Justice Task ForceFinal report Canadian Bar Association Toronto 1996 (CBA Task Force report).

[39.] Committee Responding to Recommendation 49 of the Systems of Civil Justice Task Force Report Attitudes-skills-knowledge: proposals for legal education to assist in implementing a multi-option civil justice system in the 21st century Discussion Paper Canadian Bar Association Ottawa August 1999.

[40.] id ix, 45-46.

[41.] id 47-48.

[42.] cf R Simmonds `Growth, diversity and accountability: An insider's outside look' in J Goldring et alNew foundations in legal education Cavendish London 1998.

[43.] ALRC DP 62 para 3.66.

[44.] ALRC DP 62 proposal 3.1.

[45.] id para 3.67.

[46.] id para 3.70-3.73.

[47.] Law CouncilBlueprint for the structure of the legal profession: A national market for legal services Law Council Canberra 1994.

[48.] Letter to Professor Ralph Simmonds, convenor of the Committee of Australian Law Deans, 25 November 1994.

[49.] Law CouncilSubmission 375 Attachment A: `Proposal for a National Appraisal Council for the legal profession' 21 October 1997, by Justice LJ Priestley, on behalf of the Law Council and the Consultative Committee of State and Territorial Law Admitting Authorities to Mr Laurie Glanfield, Director-General of the NSW Attorney General's Department, for consideration by the Standing Committee of Attorneys-General (SCAG) (Consultative Committee Proposal). Law Admissions Consultative Committee Submission 384.

[50.] ibid.

[51.] id 1.

[52.] id 2.

[53.] id 4. It is proposed that the Executive Committee be comprised of `not less than three and not more than five persons, appointed by the President of the Council of Chief Justices, after consultation with the President of the National Appraisal Council', from a list of members of Council who make themselves available for this purpose.

[54.] Law CouncilSubmission 375.

[55.] National Board of Employment, Education & Training, Higher Education CouncilProfessional education and credentialism AGPS Canberra 1996.

[56.] id xii.

[57.] Australian Law Students' AssociationSubmission 346.

[58.] Some States have additional representatives, for example, California 4, New York 2, and North Carolina 2.

[59.] Under theCourts and Legal Services Act 1990 (UK) s 19. The Advisory Committee replaced the non-statutory Lord Chancellor's Advisory Committee on Legal Education, established in 1971 following the Ormrod report.

[60.] Courts and Legal Services Act 1990 (UK) s 20.

[61.] By theAccess to Justice Act 1999 (UK) s 35.

[62.] Courts and Legal Services Act 1990 (UK) s 18A, inserted by the Access to Justice Act 1999 (UK) s 35.

[63.] Courts and Legal Services Act 1990 (UK) s 18A(2).

[64.] Consultative Committee Proposal 4.

[65.] Letter from Mr Laurie Glanfield, Secretary to the Standing Committee of Attorneys-General, 21 April 1998, to the Consultative Committee and Law Council, advising them of the outcome of their proposal.

[66.] Law Admissions Consultative CommitteeSubmission 384.

[67.] Consultative Committee Proposal 2.

[68.] There are currently 176 ABA-accredited law schools, of which 159 are also members of AALS.

[69.] The deans of 14 `elite law schools', such as Harvard, Yale and Stanford, wrote a letter to all of the other American law deans, calling into question the nature and value of the ABA accreditation system. The arguments, essentially, were that the system is `too inflexible'; too time consuming; `overly intrusive' into matters of internal administration; `concerned with details at odds with quality'; and demands too great a degree of conformity, resulting in a depressing homogeneity and a lack (indeed a suppression) of creativity and diversity.

[70.] In 1993, a new law school (Massachusetts Law School, established 1988) which had been denied accreditation filed suit against the ABA for anti-trust violations (restrictive trade practices), and challenged the US Department of Education's official certification of the ABA standards and processes. The US Department of Justice also launched an investigation into the ABA's accreditation process. The suit and investigation were settled out of court, with the ABA agreeing to eliminate some of its resource based standards, such as those which prescribed minimum salaries for law professors and deans.

[71.] J WebberSubmission 334.

[72.] ibid. R SimmondsSubmission 301, urged the need for research to `replace standard setting by anecdote'.

[73.] Indeed, as described above, there are effectively two, operated by the ABA and AALS.

[74.] Given the ABA's requirements for substantial recurrent financial resources (for example, ABA Standard 201(b) -- Adequate resources), large libraries, and other expensive programs and facilities, very few, if any, Australian law schools -- even the longest established and best funded by local standards - would be likely to gain ABA accreditation.

[75.] Entry entirely by apprenticeship (articles) may now be rare, but it is still possible in some jurisdictions. In New South Wales, entry via the Admission Board course is not only still possible, but the numbers are large. According to the Centre for Legal Education, there are over 4000 `students-at-law' registered with the Admission Board, of whom over 3000 appear to be `active'. This nearly matches the total of all university LLB students in NSW.

[76.] See E Clark and M Tsamenyi `An Australian perspective on the promises and pitfalls of law school accreditation' in P Birks (ed)Reviewing legal education Oxford University Press 1994, ch 5, 47-59.

[77.] For example, DETYA statistics for university funding, released on 7 September 1998, indicate that the Base Operating Grant per Planned EFTSU (equivalent to a full-time student unit) in 1998 was $11 197. However, after internal distribution within universities, only the best funded law schools get about $5000/EFTSU, with many given the `marginal cost' sum of $2300. Accredited American law schools would operate on at least five times this amount (not taking into account exchange rate differences), and elite law schools on at least ten times this amount. For a general discussion of funding differentials, see G Moodie `Let's keep status in proportion' Australian 14 October 1998. Law is nevertheless placed in the highest band for HECS liability and repayments, together with the expensive clinically based programs in medicine, dentistry and veterinary science. In 2000, full time law students will attract a HECS liability of $5772 per year.

[78.] P Lawnham `Law deans aim nationally' Australian 13 October 1999.

[79.] A StewartSubmission 32.

[80.] ibid.

[81.] N Rees `The nature and purpose of the law degree'Paper Global legal education: An Anglo-Australian virtual conference 13 October 1999, 24-25. The conference was sponsored by the British Council, Australia, the Centre for Legal Education, Australia, the Law Foundation of NSW, and the College of Law of London. For a discussion of the conference see Law Foundation of NSW (Spring 1999) 4(3) Newsletter 4 and <http://lawfoundation.net.au/cle/nswlec.html> (17 January 2000).

[82.] J Schlegel 'Legal education -- More theory, more practice' (1988) 13Legal Service Bulletin 71, 73, quoted in D Weisbrot Australian lawyers Longman Cheshire Melbourne 1990, 136.

[83.] R SimmondsSubmission 301.

[84.] Law CouncilSubmission 375.

[85.] Federal CourtSubmission 393.

[86.] ibid.

[87.] Freehill Hollingdale & PageSubmission 339.

[88.] P GreenwoodSubmission 303.

[89.] Pearce report 991.

[90.] Statement of Australian Law Deans, appendix 3 of the Pearce report para [71.]

[91.] See D Weisbrot, `Competition, cooperation and legal change' (1993) 4 Legal Education Review 1, especially 16-27. Unfortunately, the position in England may not be greatly different: see P Birks `The academic and the practitioner' (1998) 18 Legal Studies 397. Although there is tension between legal academics and the judiciary over the particular issue of accreditation, this is not necessarily symptomatic of the general relationship, which has warmed in recent times. Academic writing is now much more widely cited by the courts, for example, and there is much greater acceptance of the appointment of academics to the judiciary -- still somewhat more common in the federal courts and tribunals than at State and Territory level. A number of judges also have connections with law schools as members of faculty boards or advisory boards, or as occasional lecturers.

[92.] ALRC DP 62 para 3.17-3.43.

[93.] See J Goldring et al (eds)New foundations in legal education Cavendish London 1998; M Le Brun and R Johnstone The quiet revolution: Improving student learning in law Law Book Co Sydney 1994; E Clark Submission 333.

[94.] See H Astor and C ChinkinDispute resolution in Australia Butterworths Sydney 1992; C Brabazon and S Frisby `Teaching alternative dispute resolution skills' in C Sampford et al (eds) Educating lawyers for a less adversarial system Federation Press Sydney 1999, 156; R Calver `The teaching of commercial alternative dispute resolution: Problems and opportunities' (1995) 12 Journal of Professional Legal Education 113; and C Menkel-Meadow `To solve problems, not make them: Integrating ADR in the law school curriculum' (1995) 46 Southern Methodist University Law Review 199.

[95.] See M Galanter `Worlds of deals: Using negotiation to teach about legal process' (1984) 34Journal of Legal Education 268.

[96.] See C Menkel-Meadow `Can a law teacher avoid teaching legal ethics?' (1991) 3Journal of Legal Education 3.

[97.] C Parker and P Redmond `Teaching good corporate lawyering' (1999) 3Flinders Journal of Law Reform 97. See also J von Doussa `Corporate law teaching and professional standards' (1999) 3 Flinders Journal of Law Reform 119.

[98.] See for example A Goldsmith `Heroes or technicians? The moral capacities of tomorrow's lawyers' (1996) 14 Journal of Professional Legal Education 1 and R Granfield Making elite lawyers: Visions of law at Harvard and beyond Routledge New York [1992.]

[99.] C RoperSubmission 313 noted the joint statement of the Law Society of England and Wales and the General Council of the Bar on the need to maintain the `foundations of legal knowledge'.

[100.] ALRC DP 62 para 3.24.

[101.] Law Admissions Consultative CommitteeSubmission 384 which emphasised the difference between compelling law schools to adopt a set curriculum, and compelling applicants for admission to have completed a prescribed set of subjects.

[102.] Sydney Law School is unusual in teaching these together in one subject, which is compulsory -- in part, a legacy of Professor Julius Stone's belief in the importance of international and comparative approaches to developing a `sociological jurisprudence'.

[103.] General Council of the Bar and the Law Society of England and Wales Joint Announcement on Qualifying Law Degrees 6 October 1999 <http://www.barcouncil.org.uk/et/academic-b1.html#1> (12 January 2000).

[104.] P Finn `Statutes and the common law' (1992) 22University of Western Australia Law Review 7, 8.

[105.] M McHugh `The growth of legislation and litigation' (1995) 69Australian Law Journal 37, 37-38.

[106.] The Law Reform Commission of Western AustraliaReview of the criminal and civil justice system in Western Australia -- Final report Project 92 LRCWA Perth 1999, rec 440, specifies that `[l]egal ethics training should be required for students to obtain undergraduate law degrees'.

[107.] For a good example of this approach, see R Watterson `Teaching public interest advocacy'Seminar paper Newcastle Legal Centre at the University of Newcastle, 27 August 1999. See also K Economides (ed) Ethical challenges to legal education and conduct Hart Oxford 1998; J Goldring `What do we teach? Legal ethics or something else?' (1992) 10 Journal of Professional Legal Education 83 and `Lawyers, legal practice and values' (1996) 18 Sydney Law Review 249; C Menkel-Meadow `What's missing from the MacCrate report -- Of skills, legal science and being a human being' (1994) 69 Washington Law Review 593.

[108.] Lord Chancellor's Advisory Committee on Legal Education and ConductFirst report on legal education and training 1996, 57, 59 cited in the Australian Law Students' Association Submission 346.

[109.] S Leeder `Changing medical education for the 21st century' (June 1994)Thoracic Society News 42, 43. See also S Leeder, `The future of medicine: does the profession have a vision?' (1995) 163 The Medical Journal of Australia 271; and B Habbick and S Leeder, `Orienting medical education to community need: a review' (1996) 30 Medical Education 163.

[110.] Dissatisfaction with the traditional medical degree, however, has led the University of Sydney, the University of Queensland and Flinders University recently to revamp completely their programs, moving to four year graduate-only degree programs -- pioneered by Newcastle University in Australia, Harvard Medical School in the United States, and McMaster University in Canada -- which are organised around problem based learning, give emphasis to the development of an ethical sensibility and communication skills, and feature such major `curricular themes' as basic and clinical sciences; the community and the doctor; the patient and the doctor; and personal and professional development: S Leeder `Changing medical education for the 21st century' (June 1994)Thoracic Society News 42, 43.

[111.] id 44.

[112.] See ALRC DP 62 para 3.90, 3.109.

[113.] Leaving aside, of course, those admissions which are made through special access and equity programs catering for students who have suffered serious disadvantage. At some of the leading law schools, even these special admissions are limited to students in the top 10% or so.

[114.] D Weisbrot `From the Dean's desk' (1994) 3(1)Sydney Law School Reports 1.

[115.] E El-Khawas et al `Quality assurance in higher education: Recent progress; challenges ahead'Paper UNESCO's World Conference on Higher Education: Vision and Action Paris 5 October 1998, 7 <http://www.worldbank.org/html/extdr/educ/postbasc.htm> (17 January 2000). See also V Massaro `Quality measurement in Australia: An assessment of the holistic approach' (1996) 7 Higher Education Management 1.

[116.] E El-Khawas et al `Quality assurance in higher education: Recent progress; challenges ahead'Paper UNESCO's World Conference on Higher Education: Vision and Action Paris 5 October 1998, 15 <http://www.worldbank.org/html/extdr/educ/postbasc.htm> (17 January 2000).

[117.] id 7.

[118.] See D Kemp MP, Minister for Education, Training and Youth Affairs `Quality assured: A new Australian quality assurance framework for university education' Speech Seminar on the New Quality Assurance Framework Canberra 10 December 1999 <http://www.detya.gov.au/ministers/kemp/dec99/ks101299.htm> (17 January 2000).

[119.] With a joint membership structure in which one third of the governing Board is elected by the higher education sector, one third nominated by the Commonwealth and one third nominated by the states and territories: See D Illing `AVCC calls for national audit board' Australian 27 October 1999; G Moodie `Market mentality sparks quality rush' Australian 3 November 1999; D Illing `Agency to assure quality' Australian 8 December 1999; D Illing `Unis face quality controls' Australian 11-12 December 1999; and Editorial Australian 11-12 December 1999.

[120.] Any process involving university law schools should, for these purposes, also apply to the large Law Extension Committee program operated through the University of Sydney on behalf of the NSW Legal Practitioners Admission Board.

[121.] C McInnis and S MarginsonAustralian law schools after the 1987 Pearce report Centre for the Study of Higher Education University of Melbourne and AGPS Canberra 1994, 267-9.

[122.] id 270.

[123.] id 270-1.

[124.] Formerly known as the Committee for the Advancement of University Teaching (CAUT), and the Committee on University Teaching and Staff Development (CUTSD).

[125.] ALRC DP 62 para 3.44.

[126.] See Martin report vol 2 para 52-56; Ormrod report para 100. The Martin report recommended two years of practical legal training.

[127.] D WeisbrotAustralian lawyers Longman Cheshire Melbourne 1990, [149.]

[128.] ALRC DP 62 para 3.45.

[129.] Law Admissions Consultative CommitteeSubmission 384 notes that in some Australian jurisdictions, articles remain the sole or preferred means of acquiring practical training and experience.

[130.] British Council, Australia; Centre for Legal Education, Australia; Law Foundation of NSW and the College of Law of London `Global legal education: An Anglo-Australian virtual conference' 13 October [1999.] See <http://lawfoundation.net.au/cle/nswlec.html> (17 January 2000).

[131.] For a personal reflection on articles in Australia, see M Kirby `Seven ages of a lawyer'Address Leo Cussen Memorial Lecture Melbourne 25 October 1999, 6-7.

[132.] T King `Session 4 -- On-the-job training' Comment Global legal education: An Anglo-Australian virtual conference, British Council, Australia; Centre for Legal Education, Australia; Law Foundation of NSW and the College of Law of London 13 October 1999 <http://lawfoundation.net.au/cle/nswlec.html> (17 January 2000).

[133.] id 32.

[134.] Law Admissions Consultative CommitteeSubmission 384.

[135.] Completion of a law degree (which meets the Priestley 11 areas of knowledge); completion of other pre admission training in preliminary professional responsibility and ethics; entitlement to admission to legal practice with practice rights restricted for three years after commencing practice during which time the practitioner is able only to practise as an employee under supervision; within five years of commencing practice the lawyer must also complete structured training courses in eight primary skill based subjects, and complete at least three months practical legal work experience in each of four separate areas of legal practice.

[136.] Australian Law Students' AssociationSubmission 346. Cf Law Admissions Consultative Committee Submission 384.

[137.] Law CouncilSubmission 375.

[138.] ALRC DP 62 para 3.45.

[139.] id para 3.48.

[140.] Pearce report 862 andReport of the Committee of Inquiry into the Future Organisation of the Legal Profession in Western Australia GPS Perth 1983, 177-178 (the Clarkson report). See also J Eckert Development of a practical legal training court in Western Australia GPS Perth 1994.

[141.] J GoldringSubmission 76; C Roper Submission 313.

[142.] A StewartSubmission 327

Flinders University should be added to the list of universities which have integrated PLT courses into their undergraduate programmes. It might also be useful to note that the primary rationale for us taking this step was to ensure that our students would be able to complete all their required pre-admission training without needing to pay upfront fees. It was only by incorporating PLT into the undergraduate programme, as opposed to a separate postgraduate degree, that it was possible to guarantee that all necessary subjects could be taken on a HECS-liable basis.

[143.] Committee of Review of Fee-paying Arrangements for Postgraduate CoursesReport AGPS Canberra 1995 (the Stanley report).

[144.] K Smith `The vocational stage -- a case study'Paper Global legal education: An Anglo-Australian virtual conference British Council, Australia; Centre for Legal Education, Australia; Law Foundation of NSW and the College of Law of London 13 October 1999 <http://lawfoundation.net.au/cle/nswlec_s3.html> (17 January 2000).

[145.] See generally D WeisbrotAustralian lawyers Longman Cheshire Melbourne 1990, ch 7.

[146.] The Centre for Legal Education has conducted several 'career intention' and `career destination' surveys' since 1991 which indicate that about half of law students envisage a career in private practice. See eg S Vignaendra,Australian law graduates career destinations Centre for Legal Education and the Department of Employment, Education, Training and Youth Affairs, 1998. There is no effective collection or collation of statistics about employment patterns and trends for lawyers nationally; the Law Society of NSW has done some very good work in this area, and the Law Institute of Victoria has started this more recently. Professor Ralph Simmonds, Dean of Murdoch University, has commented that there is a need for a comprehensive study of law graduates who have left the profession due to dissatisfaction with legal practice: Law school deans Consultation Perth 22 September 1999.

[147.] Including work as inhouse corporate counsel; in government; in regulatory authorities; in academia; as members of tribunals; and in what are now sometimes referred to as `multidisciplinary partnerships', but which previously were known as `firms of accountants'.

[148.] cf R Abel `Lawyers in the civil law world' in R Abel and P Lewis (eds) Lawyers in society -- The civil law world Berkeley University of California Press 1988, 4-5; see also D Weisbrot Australian lawyers Longman Cheshire Melbourne 1990, 6-7, 59-62.

[149.] See R SimmondsSubmission 301 on the critical need for research to support improvements in legal education and the legal process. Prof Simmonds urges a `partnership model', involving university law schools, the profession, the judiciary and government, including the possibility of an Academy of Law.

[150.] A Burrell `NSW Law Society looks at quitting the LCA'Australian Financial Review 10 December 1999.

[151.] See Academy of the Social Sciences in Australia (ASSA) <http://coombs.anu.edu.au/~assa/about.html> (17 January 2000).

[152.] D Barker `Proposed Australian Academy of Law'Paper Council of Australian Law Deans, 8 October 1999. At its meeting of 4 July 1999 the CALD agreed that the concept should proceed, but be broadened to take in New Zealand, Papua New Guinea and the University of the South Pacific.

[153.] id 2.

[154.] Established as a statutory body under theSingapore Academy of Law Act (Chapter 294A, Revised Edition 1989). See also <http://www.sal.org.sg/> (17 January 2000).

[155.] C Lim, Senior State Counsel, Attorney-General's Chambers, SingaporePersonal communication 27 October 1999 referring to material from the SAL website at <http://www.sal.org.sg/>.

[156.] ibid.

[157.] N McCarthy `Bar dues, MCLE restored: Supreme Court upholds bar's MCLE program in its entirety' (October 1999)California Bar Journal 1, 10 and 26.

[158.] In Victoria, Queensland and NSW.

[159.] See ALRC DP 62 para 3.51.

[160.] Established under theLegal Profession Act 1987 (NSW) s 58, to `keep under constant review the structure and functions of the legal profession and ... make reports and recommendations to the Attorney General': s 59(2).

[161.] NSW Legal Profession Advisory Council Report and Recommendation in respect of mandatory continuing legal education and the New South Wales Barristers' Rules Sydney December [1996.]

[162.] In the way, for example, that non-lawyer property conveyancers are restricted to that particular area. SeeLegal Profession Act 1987 (NSW) s 48E(4); Legal Practitioners Act 1981 (SA) s 21(3)(o)-(p); Legal Practitioners Act 1893 (WA) s 77(2); and Legal Practitioners Act 1974 (NT) s 132(2). See also Trade Practices Commission Study of the professions -- Legal TPC Canberra 1994, 270 (TPC Final report).

[163.] See R North `Post admission learning for lawyers'Paper Global legal education: An Anglo-Australian virtual conference British Council, Australia; Centre for Legal Education, Australia; Law Foundation of NSW and the College of Law of London 13 October 1999 <http://lawfoundation.net.au/cle/nswlec_s4.html> (17 January 2000).

[164.] ALRC DP 62 para 3.52 citing ALRC IP 21 para [7.]15-7.16; D WeisbrotAustralian lawyers Longman Cheshire Melbourne 1990, 152.

[165.] ALRC IP 21 para 7.9; ALRC DP 62 para 3.56. See also C Roper, `Mandatory continuing education for professionals, particularly lawyers: a literature review' (1985) 2Journal of Professional Legal Education 76.

[166.] ALRC DP 62 para 3.54 citing D Weisbrot Australian lawyers Longman Cheshire Melbourne 1990, 152.

[167.] ALRC DP 62 para 3.49 citing the Committee of Inquiry into Legal Education in New South WalesReport 1979, 209 (the Bowen report) and C Houle Continuing learning in the profession Josey-Bass San Francisco 1980, 34.

[168.] ALRC DP 62 para 3.58. See also N Gold `Beyond competence: The case for mandatory continuing learning in law' (1986) 4 Journal of Professional Legal Education 17, 20.

[169.] ALRC DP 62 para 3.58. See theLegal Profession Act 1987 (NSW) s 171C(1)(f); the Legal Practice Act 1996 (Vic) s 159(1)(e); the Legal Profession Act 1993 (Tas) s 61(2)(g); the Queensland Law Society Act 1952 (Qld) s 6R(1)(I)(iii) and the Legal Practitioners Act 1981 (SA) s 77AB(1)(d)(ii), for examples of provisions which make this possible.

[170.] See R North `Post admission learning for lawyers'Paper Global legal education: An Anglo-Australian virtual conference British Council, Australia; Centre for Legal Education, Australia, Law Foundation of NSW and the College of Law of London 13 October 1999 <http://lawfoundation.net.au/cle/nswlec_s4.html> (17 January 2000).

[171.] id 44.

[172.] Law Reform Commission of Western AustraliaReview of the criminal and civil justice system in Western Australia -- Final report Project 92 LRCWA Perth 1999, para 36.15.

[173.] id para 36.16.

[174.] ibid.

[175.] Law CouncilSubmission 375.

[176.] ALRC DP 62 para 3.57.

[177.] Law CouncilSubmission 375.

[178.] Law CouncilSubmission 196.

[179.] Law Society of New South Wales Discussion paper Mandatory continuing legal education Law Society of NSW Sydney 1999, 6-9.

[180.] ALRC DP 62 para 3.57.

[181.] Law Society of NSWDiscussion paper: Mandatory continuing legal education Law Society of NSW Sydney 1999, 11.

[182.] id 21.

[183.] id 22.

[184.] ALRC DP 62 para 3.75.

[185.] AJAC report para 15.80.

[186.] id action 15.4, 379. See also para 15.80-15.103.

[187.] ALRC DP 62 para 3.74.

[188.] ALRC DP 62 para 3.76 citing D Catlin `Michigan's magic touch in educating judges' (1986) 25The Judges Journal 32.

[189.] Although the civil code systems set up elaborate induction training for judicial aspirants, they too have implemented formal continuing judicial education programs only relatively recently. See eg J Staats, German Ministry of Justice `The education and further training of German judges for their duties in civil proceedings'Paper Beyond the Adversarial System Conference Brisbane 10-11 July 1997 and M Lemonde `Training of judicial officers and attorneys in France' Paper Beyond the Adversarial System Conference Brisbane 10-11 July 1997. French judges are guaranteed the right to continuous training in the Institutional Act of 25 February 1992 (loi organique) set at five days training annually throughout their judicial career. However, demand exceeds the supply of courses from the Ecole Nationale de Magistrature.

[190.] ALRC DP 62 para 3.77 citing P Sallmann `Comparative judicial education in a nutshell: A cursory exposition' (1993) 2 Journal of Judicial Administration 245, 245, 252. Note this comment was directed to the situation as at 1993, but is still apposite today.

[191.] See for example, Lord Irvine `Training in a modern world' (1997) 2The Judicial Studies Board Journal 2; M Gleeson, `The state of the judicature' Address Australian Legal Convention Canberra 10 October 1999, 4 <http://www.hcourt.gov.au/speeches.htm> (17 January 2000); S Colbran Submission 309, regarding the role that judicial performance evaluation can play in identifying core competencies and targeting educational needs for the judiciary.

[192.] ALRC DP 62 para 3.89.

[193.] ALRC DP 62 proposal 3.2.

[194.] Law CouncilSubmission 375.

[195.] A Mason `The future of adversarial justice' Paper 17th AIJA Annual Conference Adelaide 6-8 August 1999.

[196.] M Gleeson `The state of the judicature' Address Australian Legal Convention Canberra 10 October 1999 <http://www.hcourt.gov.au/speeches.htm> (17 January 2000).

[197.] C RoperProposed Australian Judicial College: Discussion Paper Australian Institute of Judicial Administration and the Judicial Conference of Australia September 1999 (the AIJA-JCA Discussion Paper).

[198.] The AIJA and the JCA have established a working group to consider the issue, comprised of Justice John Dowsett of the Federal Court, Justice John Byrne of the Supreme Court of Queensland, Professor Stephen Parker, Dean of Law at Monash University, and Professor Greg Reinhardt, Executive Director of AIJA.

[199.] See ALRC DP 62 para 3.79-3.80.

[200.] Contrary to the position in most other countries, the National Judicial College (NJC) was established on the initiative of the American Bar Association, the peak professional association, rather than the initiative of judges.

[201.] See ALRC DP 62 para 3.81. See also AIJA-JCA Discussion Paper, 3, 30.

[202.] See ALRC DP 62 para 3.82. See also AIJA-JCA Discussion Paper 4, 44.

[203.] The Singapore Centre for Judicial Education and Learning was established in 1996, and the New Zealand Institute of Judicial Studies in 1998. See ALRC DP 62 para 3.83; AIJA-JCA Discussion Paper 4, 39.

[204.] J DoyleSubmission 382 refers to the desirability of maintaining AIJA as an inclusive membership body, remaining apart from a college devoted solely to judicial education.

[205.] Judicial Officers Act 1986 (NSW), as amended by the Judicial Officers Amendment Act 1987 (NSW), which established the Commission as a statutory corporation independent of executive government.

[206.] This year, the JCNSW is operating on a budget of about $2.9 million, employing about 25-26 staff. There is also an Education Committee for each participating court, with members volunteering their time. See JCNSWAnnual report 1998-1999, 33-41 for staffing information, 51-68 for audited financial information. Judicial education topics presented are detailed in appendix 2, committee membership in appendix 3.

[207.] E Schmatt, Chief Executive of the JCNSW Consultation Sydney 19 October 1999.

[208.] NSW judicial officers are not charged fees, but judges and magistrates from interstate and overseas are (that is, their respective courts are).

[209.] AJAC report 377.

[210.] ALRC DP 62 para 3.105.

[211.] W Stevenson `Towards the creation of a national judicial education service for Canada'Report for the Canadian Judicial Centre Project, 11 quoted in Judicial College DP at 44, and see also at 10, for a similar quote by Sir Ivor Richardson in 1994 about the New Zealand situation.

[212.] See AIJA-JCA Discussion Paper 43.

[213.] Although it is not a matter of great moment, the Commission prefers the name `Australian Judicial College' to distinguish this institution from the (American) National Judicial Center, and the (Canadian) National Judicial Institute. The question of name is considered in the AIJA-JCA Discussion Paper 49-50.

[214.] AIJA-JCA Discussion Paper 12-14.

[215.] ALRC DP 62 para 3.90.

[216.] Law CouncilSubmission 375.

[217.] AIJA-JCA Discussion Paper 11.

[218.] North Dakota Supreme Court, Administrative Rule 30.1, adopted 5 October 1990, effective 1 January 1991 <http://www.court.state.nd.us/court/rules/administrative/ar30.1.htm> (13 January 2000).

[219.] M Gleeson `The future of judicial education' (1999) 11(1)Judicial Officers' Bulletin 1, 2.

[220.] M Gleeson `The state of the judicature' Address Australian Legal Convention Canberra 10 October 1999, 4 <http://www.hcourt.gov.au/speeches.htm> (17 January 2000). As noted above, the JCNSW is an independent statutory body, and is not part of the Attorney-General's Department. Its annual budget is negotiated directly with Treasury. Heads of jurisdiction form the education division of the Commission, with education committees in each court.

[221.] M Gleeson `The future of judicial education' (1999) 11(1)Judicial Officers' Bulletin 1, 3. See also AIJA-JCA Discussion Paper 46.

[222.] ibid. The Council of Chief Justices of Australia and New Zealand consists of the Chief Justices of the High Court of Australia, the High Court of New Zealand, the Federal Court of Australia, the Family Court of Australia, and the Supreme Courts of each State and Territory.

[223.] Federal CourtSubmission 393.

[224.] Working party on judicial studies and informationReport HMSO London 1978 (Bridge report) discussed in AIJA-JCA Discussion Paper 36, 45.

[225.] AIJA-JCA Discussion Paper 45.

[226.] id 41.

[227.] ibid.

[228.] L Armytage `Educating judges: Lessons from common and civil law approaches' Paper Beyond the Adversarial System Conference Brisbane 10-11 July [1997.]

[229.] ALRC DP 62 para 3.91.

[230.] Under theJudicial Officers Act 1986 (NSW) s 5.

[231.] AIJA-JCA Discussion Paper 42. The DP canvasses a number of possibilities for structuring such a board.

[232.] See Justice N BuckleyAddress Association of Family & Conciliation Courts Montreal 17-20 May 1995.

[233.] Justice FrenchConsultation Perth 23 September 1999.

[234.] G Brennan `The state of the judicature' (1998) 72Australian Law Journal 33, 37.

[235.] See generally AIJA-JCA Discussion Paper.

[236.] M Gleeson `The state of the judicature'Address Australian Legal Convention Canberra 10 October 1999, 3 <http://www.hcourt.gov.au/speeches.htm> (17 January 2000).

[237.] D Williams `Federal magistrates legislation passes parliament'Media release 8 December 1999.

[238.] M Gleeson `The state of the judicature' Address Australian Legal Convention Canberra 10 October 1999, 3 <http://www.hcourt.gov.au/speeches.htm> (17 January 2000).

[239.] See eg, the discussion of state and federal jurisdiction inRe Wakim; Ex parte McNally (1999) 163 ALR 270

[240.] Proposal 3.2 of DP 62 suggested that the establishment of a national judicial college might be achieved by `reconstituting' AIJA for this purpose, in consultation with the JCA. Consultations with these bodies suggested that this was not their desired approach, and it is significant that their discussion paper does not raise this as an option.

[241.] ALRC DP 62 para 3.109.

[242.] AJAC report 379, action 15.4. See also para 15.80-15.103.

[243.] ALRC DP 62 para 3.93.

[244.] AIJA-JCA Discussion Paper 33-34.

[245.] See ALRC DP 62 para 3.79-3.80 and AIJA-JCA Discussion Paper 29-30, 33-44.

[246.] See AIJA-JCA Discussion Paper 34.

[247.] ibid.

[248.] For example, many tribunal members are not legally qualified.

[249.] M KirbyConsultation Sydney 14 October 1999.

[250.] ALRC DP 62 para 3.87-3.100.

[251.] For example the Law Institute of Victoria, Litigation Section Consultation Melbourne 24 August 1999, suggested that overseas studies pointed to years 6 and 11 as danger spots in the career of a judge; Ernie Schmatt of the JCNSW, also raised the possibility of running a `5 years after appointment' program for judicial officers, dealing with mid career issues, including how to avoid `burnout': Consultation Sydney 19 October [1999.]

[252.] R SimmondsSubmission 368.

[253.] D IppConsultation Perth 22 September 1999; French J Consultation Perth 23 September 1999.

[254.] On the challenges involved in getting busy professionals to learn, see C Argyris `Teaching smart people how to learn' (1991) 69(3)Harvard Business Review 99.

[255.] R Simmonds (Murdoch University) and I Campbell (University of Western Australia) Law school deans Consultation Perth 22 September 1999.

[256.] The report by Lord Justice Bridge which led to the establishment of the Judicial Studies Board in England specifically recommended the use of the word `Board', rather than `College', for this reason. See AIJA-JCA Discussion Paper 3.

[257.] AIJA-JCA Discussion Paper 47.

[258.] CJEI has funding from the Commonwealth, non-government organisations (eg the Ford and Nuffield Foundations) and aid agencies (eg USAID, the British Council, the Canadian International Development Agency). It works internationally, in cooperation with local and regional judges' and magistrates' associations; provides support and linkages among Commonwealth judicial education bodies and delivers judicial education programs at the invitation of the Chief Justice of a jurisdiction, where no judicial education body exists, or in partnership where one does exist. The CJEI has been particularly active in the less developed nations of the Commonwealth, especially Africa, the Caribbean, South Asia (Bangladesh, Pakistan and Sri Lanka) and the Pacific Islands. Justice Neil Buckley of the Family Court of Australia is a member of the Board of Directors.

[259.] See <http://www.vanuatu.usp.ac.fj/IJALS/ijals_main.html> (17 January 2000).

[260.] AIJA-JCA Discussion Paper 48.

[261.] ALRC DP 62 proposal 3.2.

[262.] The AIJA has had a linkage for some years with the University of Melbourne, although this is set to end in February 2001 (mainly due to the University's new policy on commercial cost recovery for the provision of accommodation). Affiliation with another institution remains a possibility.

[263.] AIJA-JCA Discussion Paper 29.

[264.] id 58.

[265.] ALRC DP 62 proposal 3.2.

[266.] id para 3.85.

[267.] Supreme Court of VictoriaConsultation Melbourne 25 August [1999.]

[268.] E SchmattConsultation Sydney 19 October 1999.

[269.] Law CouncilSubmission 196.

[270.] M Gleeson `The future of judicial education' (1999) 11(1)Judicial Officers' Bulletin 1, 3.

[271.] As approved by SCAG in 1999.

[272.] In 1998-99, the JCNSW's aggregated budget was $2.9 million, most of which was devoted to education, research, publications and online database maintenance. Conduct matters occupy a relatively modest portion of the budget, mainly payments for investigation of complaints.

[273.] ALRC DP 62 para 3.117.

[274.] id para 3.114.

[275.] Society of Ontario Adjudicators and Regulators `Towards maintaining and improving the quality of adjudication: SOAR recommendations for performance management in Ontario's administrative justice tribunals' (1996) 9(2) Canadian Journal of Administrative Law and Practice 179 (SOAR recommendations). Also available at <http://www.instantweb.com/~soar/perfmgmt.htm> (17 January 2000).

[276.] Administrative Review Council Report 39 Better decisions: Review of the Commonwealth merits review tribunals AGPS Canberra 1995 (ARC 39).

[277.] ARC 39 para 4.17 quoted in ALRC DP 62 para [3.]115.

[278.] ARC 39 rec 31.

[279.] ALRC DP 62 para 3.116.

[280.] ARC 39 para 4.84-4.92.

[281.] J Disney `The way ahead for tribunals' in R Creyke (ed) Administrative tribunals: Taking stock ANU Centre for International and Public Law 1992, 126.

[282.] ALRC DP 62 para 3.122.

[283.] AATSubmission 144; see also J Dwyer `Smoothing the sharp corners of the adversarial system -- The experience of the Administrative Appeals Tribunal' in C Sampford et al (eds) Educating lawyers for a less adversarial system Federation Press Sydney 1999, 27.

[284.] ALRC DP 62 proposal 3.3.

[285.] D O'Connor `Future directions in Australian administrative law: the Administrative Appeals Tribunal' in P Bayne (ed)AAT essays 1976-1996 AAT Sydney 1996, 13, 16.

[286.] Administrative Review Council Submission 307.

[287.] Law CouncilSubmission 375.

[288.] R SimmondsSubmission 368.

[289.] N ReesSubmission 363.

[290.] P O'Connor, Monash University Personal communication 27 November 1999.

[291.] Softlaw's software packages are aimed at social welfare type decision making, and provide templates/checklists to lead the decision maker through the process. See also para 5.168.

[292.] A notable exception is the appointment of executive members of the Social Security Appeals Tribunal (SSAT).

[293.] M Neave `Bureaucratic rationality versus individualised justice -- new developments in Australian federal administrative tribunals'Paper Council of Canadian Administrative Tribunals Best Practice in Administrative Justice International Conference Vancouver 10-12 October 1999.

[294.] ALRC DP 62 proposal 3.4.

[295.] AATSubmission 144.

[296.] See K Cronin `The role of legal education in achieving administrative justice'Paper AIAL National Administrative Law Forum `Administrative justice -- The core and the fringe' Canberra 29-30 April 1999.

[297.] ARC 39 rec 85.

[298.] s 353A(2).

[299.] Law and Justice Legislation Amendment Act 1998 (Cth) Sch 1, which amended s 51 of the Administrative Appeals Tribunal Act 1975 (Cth), substituting a new paragraph (g) and adding paragraph (h).

[300.] See ARC 39 para 7.49. See also M Priest `Fundamental reforms to the Ontario administrative justice system' in Ontario Law Reform CommissionRethinking civil justice: research studies for the civil justice review Vol 2 OLRC Toronto 1996, 561.

[301.] See eg SOAR recommendations referred at para 2.207 above.

[302.] But less so federally, due to the strictures of Chapter III of the Constitution. However, in practice, the NSW ADT may be more involved in original decision making than in review of administrative decision making.

[303.] Law CouncilSubmission 375.

[304.] Administrative Review Council Submission 307.

[305.] To be contained inAAT Act 1975 (Cth) s 51(1)(g) as amended.

[306.] Different organisational models exist to serve the needs of tribunals and tribunal members. The US and the UK have developed executive models, while others jurisdictions have developed membership models, of which SOAR is a leading example.

[307.] M Gleeson `Who do judges think they are?' (1998) 22Criminal Law Journal 10, 13. See also M Gleeson `The state of the judicature' Address Australian Legal Convention Canberra 10 October 1999, 1 <http://www.hcourt.gov.au/speeches.htm> (17 January 2000); M Beazley `Judicial independence and accountability: A discordant couplet' Paper 17th AIJA Annual Conference Adelaide 6-8 August 1999; D Malcolm `Independence with accountability' Paper 17th AIJA Annual Conference Adelaide 6-8 August 1999.

[308.] See eg D Malcolm `Independence with accountability'Paper 17th AIJA Annual Conference Adelaide 6-8 August 1999.

[309.] S ShetreetJudges on trial: A study of the appointment and accountability of the English judiciary North-Holland Publishing Company Amsterdam 1976.

[310.] F JevonsSubmissions 321 and 387 noted the danger that loyalty to colleagues can act as a counterbalance to peer pressure.

[311.] M BlackSubmission 386.

[312.] M Beazley `Judicial independence and accountability: A discordant couplet'Paper 17th AIJA Annual Conference Adelaide 6-8 August 1999, 10-12.

[313.] Law CouncilSubmission 375.

[314.] However, there are now some well-established mechanisms in most courts, including the Federal Court, for dealing with concerns about delays in the delivery of judgments. These often involve an approach from the head of the bar to the head of jurisdiction, in order to avoid a direct dispute between counsel and the judge in a particular matter.

[315.] Federal CourtSubmission 393.

[316.] A Phelan `Strategic uses of client feedback by courts: The experience of the Family Court of Australia'Paper AIJA Court Administrators' Conference Adelaide 6 August 1999, 11.

[317.] For example theFreedom of Information Act 1982 (Cth).

[318.] The office of the Commonwealth Ombudsman is established under theOmbudsman Act 1976 (Cth).

[319.] The Human Rights and Equal Opportunity Commission (HREOC) operates under theHuman Rights and Equal Opportunity Commission Act 1986 (Cth), and there are currently Commissioners with specific responsibility for human rights, disability discrimination, sex discrimination, race discrimination, Aboriginal and Torres Strait Islander social justice, and privacy (see also the Privacy Act 1988 (Cth)).

[320.] Such as the Australian Banking Industry Ombudsman and the Telecommunications Industry Ombudsman. See also para 4.6.

[321.] M Gleeson `The state of the judicature'Address Australian Legal Convention Canberra 10 October 1999, <http://www.hcourt.gov.au/speeches.htm> (17 January 2000).

[322.] id 5-6.

[323.] ALRC DP 62 para 3.136-3.139.

[324.] Many of which are based on the American Bar Association's Model Code of Judicial Conduct.

[325.] A recent controversial use of judicial commission power occurred in California, where the California Commission on Judicial Performance accused a senior appeals court judge of `wilful misconduct' for recording a dissent in a judgment, `as a matter of personal conscience', notwithstanding the clarity of the prevailing precedent with which he disagreed. See H Weinstein `Panel Contends Judge's Dissent Was Misconduct'Los Angeles Times 6 July 1998 and Editorial `A witch hunt in the courts' Los Angeles Times 9 July [1998.]

[326.] Canadian Judicial CouncilA place apart: Judicial independence and accountability in Canada Canada Communication Group -- Publishing Ottawa 1995, 143.

[327.] Royal Commission on Criminal Justice Report (Cmnd Paper 2263) HMSO London 1993 ch 8 para 99.

[328.] Lord WoolfAccess to justice -- Final report to the Lord Chancellor on the civil justice system in England and Wales HMSO London 1996 ch 8, para 1.

[329.] See K Malleson `Judicial training and performance appraisal: The problem of judicial independence' (1997) 60 Modern Law Review 655, 656. In 1985, the American Bar Association also produced Guidelines for Judicial Performance Evaluation, which imply a set of `core competencies' for judicial officers that also would be of value in designing judicial education programs. See S Colbran Submission 309.

[330.] The JCNSW has a staff of 28 headed by a Chief Executive and an annual budget of $2.5 million. Judges and magistrates have a significant input into the continuing judicial education program and through various education committees determine the content of the program. There is a Standing Advisory Committee on Judicial Education and education committees of each of the state's six courts: Judicial Commission of New South WalesAnnual report 1997- 98.

[331.] That is, those supported by a written statutory declaration. The description of the JCNSW 's complaints process is derived from the Judicial Commission of New South WalesAnnual report 1997- 98, 37-44.

[332.] G Fitzgerald QCReport of a Commission of Inquiry pursuant to Orders in Council into possible illegal activities and associated police conduct Government Printer Brisbane 1989 (Fitzgerald report), rec 10(j). See also CJC Report on the implementation of the Fitzgerald recommendations relating to the Criminal Justice Commission CJC Brisbane 1993.

[333.] Queensland's parliament is unicameral.

[334.] Australian Bar AssociationThe independence of the judiciary [1991.] The Commission understands that the Australian Bar Association proposes to update this statement soon.

[335.] The Australian Bar Association statement does not distinguish between federal, state and territory judges for these purposes: Australian Bar AssociationThe independence of the judiciary 1991.

[336.] Australian Bar AssociationThe independence of the judiciary 1991, 5-6.

[337.] The concept that removal of judges only be on address of both Houses of Parliament dates back to theAct of Settlement 1701.

[338.] Constitutional CommissionFinal report of the Constitutional Commission Volume One AGPS Canberra 1988.

[339.] id 402.

[340.] id 403.

[341.] ALRC DP 62 para 3.135.

[342.] ALRC DP 62 proposal 3.5. See also C Merritt `The courts and the media: What reforms are needed and why?' (1999) 1UTS Law Review 42, 46-7, which argues for a judicial commission model.

[343.] Federal CourtSubmission 393.

[344.] Law CouncilSubmission 375.

[345.] M Gleeson `The state of the judicature' Address Australian Legal Convention Canberra 10 October 1999, 3 <http://www.hcourt.gov.au/speeches.htm> (17 January 2000).

[346.] D Williams `Federal magistrates legislation passes parliament'Media release 8 December 1999.

[347.] B Walker `Judicial time limits and the adversarial system' in H Stacy and M Lavarch (eds)Beyond the Adversarial System Federation Press Sydney 1999, 87, 98-99.

[348.] Law CouncilSubmission 375.

[349.] Law CouncilSubmission 375: `The Law Council expresses one rider to this, namely that in its view, section 72 of the Commonwealth Constitution could be amended to make it clear whether the ground of "proved misbehaviour" relates to post-appointment conduct only and does not apply to conduct prior to the Justice's appointment. There is considerable legal controversy as to whether conduct other than in the course of carrying out judicial duties could be regarded properly by Parliament as "proved misbehaviour". Opinions have been expressed to several different effects on that issue by a number of eminent constitutionalists since Federation and especially when the conduct of the late Justice Murphy was in question. It was also raised when the conduct of Justice Callinan was brought to public attention following the judgment of Justice Goldberg in White Industries (Qld) Pty Ltd v Flower and Hart (1998) 156 ALR 169'.

[350.] Law CouncilSubmission 375.

[351.] The Commission's terms of reference, as amended on 2 September 1997, expressly preclude consideration of any changes to the federal justice system which would or might require amendment of the Constitution. See page 5 for the amended terms of reference.

[352.] The dispersed nature of the federal courts and tribunals would present obvious logistical difficulties in siting a federal judicial commission, and ensuring accessibility for complainants.

[353.] Australian Law Reform CommissionEquality before the law: Women's access to the legal system ALRC Report 67 (Interim) AGPS Canberra 1994, para 4.42.

[354.] AJAC report ch 15.

[355.] id 370 action 15.1.

[356.] ibid.

[357.] id 371 action 15.2.

[358.] Family Court of AustraliaAnnual report 1998-99, 56.

[359.] First released by Standards Australia in [1995.] The President of the ALRC, Professor David Weisbrot, was a member of the Technical Committee which developed this standard.

[360.] ALRC DP 62 para 3.149.

[361.] S ParkerCourts and the public AIJA Inc Carlton South 1998.

[362.] id 64.

[363.] id 165 rec 7.

[364.] A Phelan `Strategic uses of client feedback by courts: The experience of the Family Court of Australia'Paper AIJA Court Administrators' Conference Adelaide 6 August 1999, 11-14.

[365.] Federal CourtSubmission [393.]

[366.] At least with respect to managing caseloads and delay in writing judgments. See also para 7.14-7.16 and 7.22.

[367.] eg Family Court of AustraliaAnnual report 1997-98, 54-55, and Annual report 1998- 99, 60-1. See also A Phelan `Strategic uses of client feedback by courts: The experience of the Family Court of Australia' Paper AIJA Court Administrators' Conference Adelaide 6 August 1999, 12-13.

[368.] Parliamentary Commission of Inquiry Act 1986 (Cth). See similarly the Parliamentary (Judges) Commission of Inquiry Act 1988 (Qld), which related to the Queensland Parliament's investigation into allegations of misconduct against then Justice Angelo Vasta.

[369.] By way of analogy, in the impeachment process of President Clinton, the US Congress (both in determining the bill of impeachment in the House of Representatives and the trial in the Senate) resisted developing a more refined definition of `high crimes and misdemeanours', preferring to deal with the issue in context.

[370.] However, the Commission does not propose to limit the traditional right of citizens of common law countries to petition the parliament.

[371.] Federal CourtSubmission 393

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