Jul 26 2012

It is a long-established tradition in Australia that courts have their own rule-making power. While rules cannot legislate power to the court, they can prescribe processes - much innovation in the Australian system now succeeds or fails on the basis of procedure rather than legislated policy.

I work in a common law lower court – a “Magistrates Court” - which has jurisdiction up to AUS $40,000 and AUS $80,000 (for different classes of disputes) and up to middle level criminal cases such as breaking into houses, stealing and assaults causing harm. The judges of the Court (called “magistrates”) are legally qualified, well paid and have security of tenure. They were given power to make their own rules of procedure in 1992 by s.49 of the Magistrates Court Act 1991 (SA).

Though the mature Magistrates Court system has challenges which are quite different to newer legal systems, this rule making power and control over administrative resources has made court-driven innovation possible.

Indeed, they have been quite innovative in changing procedures for managing civil disputes.

For instance, Magistrates Courts have introduced fixed rate cost scales for the successful party (as exists in the German civil code). They have active mediation programmes both before actions commence and as an alternative to trials and in their use of court experts. They are also innovative in criminal cases by introducing case management, in therapeutic jurisprudence initiatives and with special procedures for family violence cases.

A small team of magistrates takes conduct of a particular project and consults with interested parties, such as lawyers, community organisations, litigant representatives, police, representatives of executive government and their magistrate colleagues. It proposes rules of procedure and the team reports to a committee of magistrates which then adopts forms for processes. They are formally laid down and these become the rules of process in the court. The rules are presented to a special committee of parliament with an explanatory note. Parliament can reject them but rarely does.

Another aspect of the Court that encourages innovation is that the administrative support for the court is managed by an independent council run by a committee of the head of each court in the State and their deputies. This give the courts authority over their administrative support so that resources can be put in place to support particular innovations, subject of course to overall budgetary constraints. This statutory authority is provided for in the Courts Administration Act 1993 (SA).

These structural arrangements giving courts power to prescribe their own rules of process and to support innovations administratively are powerful tools to permit effective innovation. Simply putting the tools in place will not itself result in innovation. But where the will for change and appropriate climate to permit it exists, having these tools makes implementation of change much easier to achieve and sustain.