SPEECH TO THE MULTI-DOOR COURT HOUSE SYMPOSIUM

OLD PARLIAMENT HOUSE, CANBERRA

MONDAY, 27 JULY 2009

First, may I acknowledge the traditional owners of the land we meet on – and pay my respects to their elders, both past and present.

Thank you very much for your warm welcome – it’s a pleasure to join you for this symposium.

I sense that there are many common elements in the agenda for this symposium and the Government’s agenda for Access to Justice.

It’s now well over 30 years since Professor Sander delivered his ground-breaking paper Varieties of Dispute Processing.

He delivered this paper in 1976 at the Roscoe Pound Conference, convened to commemorate the 70th anniversary of Pound’s famous lecture The Causes of Popular Dissatisfaction with the Administration of Justice.

Professor Sander suggested that societal change had resulted in courts losing their status as “the natural and obvious dispute resolvers”[1]. He proposed that other dispute resolution processes may prove more effective.

He envisioned a transition of the courts into what he called Dispute Resolution Centres. These were later labelled, maybe too narrowly, ‘multi-door courthouses’.[2]

It was envisaged that within these centres “the grievant would first be channelled through a screening clerk who would then direct him (or her) to the process (or sequence of processes) most appropriate to his (or her) type of case.”[3]

Matching each individual dispute with the most effective dispute resolution process was central to Sander’s vision of improving access to justice.

Essentially his proposal was about best match and proportionality.

Access to Justice

As in 1976, improving access to justice is still a key issue today.

An effective and accessible civil justice system should be one where people are able to resolve their disputes quickly, effectively and fairly, using the most appropriate method for their particular circumstances.

Obviously access to justice doesn’t mean that each and every dispute between citizens, corporation or governments should be resolved in a full blown court hearing with senior counsel and associated entourage at ten paces. That would be as unsustainable as it would be impractical.

But as I have said before, an essential criterion of an effective justice system is access to appropriate advice and assistance given the nature of the difficulty, grievance or dispute.

Without this accessibility the system is compromised and in danger of losing its relevancy to, and respect from the community it serves.

That’s why a Taskforce has been established in my Department to examine access to justice issues in a holistic way.

It’s aiming to develop a more strategic approach and make recommendations on ways to improve access to justice for all Australians.

The Taskforce is due to report in the coming months and the Government will consider its recommendations, together with feedback from stakeholders, in developing any new initiatives.

Like Professor Sander, the Government believes it is important to take a wide-ranging view of access to justice as encompassing more than the courts, or even formal dispute resolution. It may involve access to industry ombudsman, greater use of administrative review mechanisms or, where appropriate, access to specialist tribunals operating fairly but with less formal processes, procedures and rules.

In short, the Government believes that providing better access to justice is not simply about just providing more resources to courts. Nor, for that matter, is it simply about providing more resources for people to conduct a knock down, drag out court case if other remedies are more effective and appropriate.

It is also about ensuring that measures are in place to resolve disputes in a simple, quick and cost effective manner, often preferably before they even reach the court.

Access to information and increasing the opportunities to resolve disputes early, either in or outside court, are important drivers for access to justice.

Building resilience in individuals, the community and the justice system is also important.

This can be done by informing the community about their justice system and equipping them with the skills, such as conflict resolution, to navigate it.

Legal issues aren’t just framed by law. They are often symptomatic of broader personal problems.

That is why we need to direct the attention of the justice system to the substance of an individual’s problem and what is needed to address it.

Multiple Entry Points in Justice System

Presently, to someone not familiar with the justice system, it can present a bewildering array of disparate institutions and services often operating independently, including courts, tribunals, legal assistance service providers, alternative dispute resolution providers, and ombudsmen.

These institutions and service providers can – and often do - assist people in resolving their legal problems, provided they have the information and resources to engage them.

Not everyone, however, always does.

While resources allow people to choose where to enter the justice system, regrettably the most appropriate pathway is not always clear.

Invariably, the right pathway will depend on the needs of the individual and the nature of his or her issue.

And while courts are an important aspect of the system, there are many situations where courts are the absolute last place people should go when they are looking to resolve some of their issues.

There are numerous examples of where the cure offered by litigation is worse than the affliction.

Like a hospital - an effective justice system should have an inbuilt triage function, enabling matters to be directed to the most appropriate destination for resolution, irrespective of how people make contact with the system.

Judicial institutions as well as the legal profession have a role to play in helping people access the best pathway to resolution.

I must say that I have been particularly impressed by a general preparedness of the profession and the courts to take a realistic view about this.

Alternative Dispute Resolution

An important pathway to resolution and a key aspect of the Government’s access to justice agenda is alternative dispute resolution (ADR).

I have asked the National Alternative Dispute Resolution Advisory Council (NADRAC) to look at what sorts of incentives would encourage the use of ADR, and what barriers need to be removed.

NADRAC has consulted widely with key stakeholders and has received a great number of submissions in response to its issues paper.

I look forward to receiving NADRAC’s report, which is due in September.

There is no doubt that ADR can be effective. The media on the weekend referred to the resolution of the Voyager, Melbourne litigation. The paper rightly pointed out the unacceptable delay in resolution of the matters. The accident occurred on 10 February 1964. What the article didn’t say, however, was that until the Government appointed a competent mediator, the cases were bogged down.

The resolution of the claims has much to do with the character and professionalism of the mediator, Jeremy Gormly QC, but it shows what can be achieved even in respect to apparently intractable disputes.

The Australian Government is also acting on several other fronts to boost the use of ADR in the civil justice system.

There are currently two Bills before Parliament which aim to bolster the use of ADR:

the Native Title Amendment Bill; and
the Access to Justice (Civil Litigation Reforms) Amendment Bill.

Native Title Amendment Bill

In March this year, I introduced the Native Title Amendment Bill 2009 into the Parliament.

One of the significant amendments contained in the Bill aims to improve the use of ADR under the Native Title Act by effecting institutional change.

The Bill will give the Federal Court control of all native title claims, including deciding who mediates a claim, whether that be the Court, the National Native Title Tribunal or another individual or body. Consistent with the discussion today. The Court will be the first door and will develop resolution strategies that are most appropriate to the issues.

Essentially the amendments in the Bill include:


These amendments will draw on the Court’s significant ADR experience, and strong results in mediating native title matters to achieve more negotiated outcomes.

Civil Litigation Reforms Amendment Bill

In June, I introduced the Access to Justice (Civil Litigation Reforms) Amendment Bill into the House of Representatives.

Through this Bill I’m hoping to trigger something of a cultural shift in the way disputes are resolved.

The Bill sends a clear message that the court, parties and their lawyers are expected to conduct litigation efficiently and cost-effectively.

The Federal Court, and the profession, was entirely constructive in the development of these proposals.

The ADR committee of the Law Council suggests the introduction of new “overriding obligations” in court and tribunal rules of practice which relate to ADR.

The Bill proposes to do exactly that.

It introduces an overarching obligation to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.

A new duty will also be established so that parties act consistently with these objectives.

Lawyers will also need to assist their clients to comply with this duty.

As part of the new active case management provisions, the Court will also need to consider whether a case should be referred for ADR.

A party’s failure to participate in ADR could be considered as failing to act in accordance with their obligation and could be taken into account when the court is making cost orders.

I think it’s fair to say that these amendments represent significant progress.

We will, however, always need to consider additional measures to ensure appropriate access to justice.

One option may be to introduce further provisions to enable the Federal Court to direct how mediation is conducted.

This could involve expanding the mediation provisions contained in the Native Title Amendment Bill to other types of disputes dealt with by the Federal Court. While I believe there may be benefits in such a model, I know there are concerns that overregulation risks ADR becoming a less attractive option.

I therefore propose to consult before making any decisions.

Mediator Accreditation Regime

Another important aspect of increasing the use of ADR is ensuring that ADR providers meet the highest professional standards.

With the support of the Australian Government, NADRAC has been instrumental in ensuring that these standards are adhered to.

On 1 January last year, the National Mediator Accreditation System became operational.

I understand that the recently appointed National Mediator Accreditation Committee has now commenced work – including establishing a permanent national Mediator Standards Body in 2010.

To support the Committee in this work, I have recently approved funding of more than $113,000.

I’m confident this national system will enhance the quality of mediation services and improve the coherence and credibility of ADR generally.

I am also confident that this national system will facilitate a greater appreciation and understanding of ADR in the wider community and build consumer confidence in mediation

In my view, these are essential building blocks for improving access to justice.

Clearly, the cooperation of Australian mediators will be needed for this new national system to have the desired effect.

I strongly encourage Australian mediators to ensure they are accredited under the new Approval and Practice Standards.

Conclusion

To share a vision is a very important aspect of bringing about positive change.

I believe those of us here today share the vision to improve access to justice for all Australians.

The ways in which we achieve this are certainly worthy of discussion.

Like Professor Sander, I believe ADR can and must play a crucial role in providing improved access to justice. I also believe his vision of the Dispute Resolution Centre that matches disputes with the most effective process for resolution is as pertinent today as it was in 1976.

Such a system may also be called a multi-door justice system – which is perhaps a broader concept than that of the multi-door court.

On that note, I wish you well in your deliberations and I look forward to hearing the outcomes of the Symposium.

Thank you.



[1] Frank Sander, Varieties of Dispute Processing, (1976) Federal Rules Decisions, 79, 112.

[2] Linda J Finkelstein, The DC Multi-Door Courthouse, (1986) Judicature 305, 305.

[3] Frank Sander, Varieties of Dispute Processing, (1976) Federal Rules Decisions, 79, 131.