I served as Chief Justice of South Australia from 1995 until I retired in 2012. During this time there was a lot of change affecting the work of the Courts of South Australia. Three things in particular stand out. In the criminal jurisdiction a steady stream of legislation redefining offences and providing for heavier penalties; reforming criminal procedures, and providing improved protection for victims of crime. In the civil jurisdiction the Courts struggled to simplify and expedite litigation and to limit its cost. More and more the exercise of judicial control was seen as the best response to cost and delay. Third, the impact of advances in information technology on the work of the Courts and the registries, in particular advances seen as facilitating improvements in the administration of justice.
All this is pretty well known. I believe the picture in other States is much the same.
Less well known or remembered is the rapid acceptance by Australia’s judicial officers of the need for and the benefits of judicial professional development (PD). In this short note, I reflect briefly on the arrival of PD. Brevity means that much of the relevant detail must be omitted.
As best I can recall, when I was appointed, we did not talk about PD. At that time the Courts of South Australia organised their own “judicial education” days, usually one or two each year. They were organised by committees of judicial volunteers, working pretty much in isolation, with negligible funding, usually scraped from the Court budget. The focus was mainly on lectures dealing with so called “black letter law”. It was a hand to mouth situation. Judicial officers could also, if their court could afford it, attend annual or biannual conferences of their respective jurisdictions nationwide. They were organised in much the same way.
We looked with envy at New South Wales, which had the Judicial Commission of New South Wales (JCNSW) funded by the government to provide high quality programs for its judiciary.
By the time I retired, indeed well before then, the picture was completely different. The National Judicial College of Australia (NJCA) had come into existence in 2002. The NJCA, funded by most Governments, albeit modestly, providing nation wide high quality PD programs, was the game changer. It worked with judicial officers in all the Australian jurisdictions, and with local PD committees as they came to be called. It also cooperated with the JCNSW, and with the Judicial College of Victoria, also established in 2002 to provide PD to the Victorian judiciary.
What sparked the transformation in my time on the bench?
First, a matter of terminology. “Professional development” was the term that we adopted. This may seem trivial. But the change of terminology emphasised that the judiciary are members of a profession and have a professional obligation, like other professions, to maintain their skills and to adjust to change. The emphasis shifted from “education” for the enthusiasts, to the obligation of each judicial officer to engage in PD.
The NJCA was made possible by the Standing Committee of Attorneys General, in response to a report calling for PD programs for Australia’s judiciary. I was a member of the group that prepared that report. Government funding was now available, and as I have said the establishment of the NJCA was a “game changer”. The NJCA developed PD programs for the judiciary, helped local committees with their programs, and worked in cooperation with the JCNSW and JCV.
The NJCA worked through Committees comprised of judicial officers, reflecting the consideration that judicial PD should be controlled by the judiciary. This in turn encouraged the exchange of information and ideas between the judiciary in various jurisdictions. The national aspect of the work of the NJCA quickly became one of its strengths.
Another factor was the recognition and abandonment of the myth of the “talented amateur”, the judicial officer who supposedly had the skills for every type of work. In truth, newly appointed judges wanted access to PD programs that would help them in unfamiliar jurisdictions.
Likewise, the recognition of judicial “burnout”, experienced by judicial officers who had served a substantial time, led to the development of programs intended to refresh and revive judicial officers, and help those who might be struggling.
Another factor was the decision by the NJCA to move the focus of PD from “black letter law” to what we called “Court craft”. That is, the emphasis was on the practical aspects of the judicial function – managing litigation, conducting trials, writing judgments, dealing with the unexpected. Newly appointed judicial officers wanted to learn from experienced judicial officers and the latter benefitted from the new ideas coming from the newly appointed judicial officers.
To summarise, at about the time the NJCA was established, PD came to be seen as a professional obligation of judicial officers, one which could be met in most jurisdictions only with the help of a national body providing suitable programs. The focus of PD shifted, so that it was tailored to the real needs of serving judicial officers. As they say, the proof of the pudding is in the eating. There can be no doubt, based on the response of Australia’s judicial officers, about the value of professional development.
This is not to say it was all plain sailing. Those of us involved in the early stages of the NJCA had to learn from our own experience, sometimes painful experiences. Getting adequate funding was a constant problem. Governments still have not, I believe, appreciated the scope of the benefits that flowed from the availability of good PD programs. Be that as it may, in a relatively short time, within my own time on the bench, we moved from an environment in which PD was more or less unknown, to one in which it was enthusiastically pursued by the bulk of Australia’s judiciary.