Supreme Court and Federal Court Judges’ Conference Thursday 23 February 2003 Hyatt Regency Adelaide

“A Creative Tension – Improving the Interface Between Judges and the Executive” The Hon. Michael Lavarch Secretary-General, Law Council of Australia

Introduction Government has always been and will always be about power. Recognising that a democracy requires that no one person or institution holds absolute power, our system of government is based upon the diffusion of power between arms of government, levels of government and structures within government. The Westminster system of government has a basic model which has power divided between the Executive, Parliament and the Judiciary. Of course, since Federation, Australia has not had a pure Westminster system but rather a hybrid between the American constitutional system and the older British Westminster model. The Commonwealth Constitution, as befits a nation brought into existence by conventions, politicians and decades of negotiations, is a document about the division of power. The Constitution allocates power between the federal government and the states and between the three arms of government. It is inevitable that the division of power will create tension between the often competing institutions which hold various aspects of power. There has always been tension between the Executive and the Parliament, particularly when the Executive does not control both Houses of the Parliament. And there has always been tension between the Executive and the Judiciary. What can vary however, is whether this tension is creative or destructive. High Court Justice Michael McHugh recently canvassed the tension between the Executive and Judiciary and cautioned that an ongoing conflict between the two arms of government damages the public interest. He commented “If the Executive government is continually criticising the Judiciary, the authority of the Courts of justice is likely to be undermined and public confidence in the integrity and impartiality of the Judges is likely to be diminished. Continuing conflict is also likely to induce the Executive government to prevail on the legislature to take the extreme step of reducing or abolishing judicial review with the result that the rule of law is undermined.”1 This paper examines the relationship of the Executive and the courts. It reviews the office of Attorney-General as the traditional and principal interface between the Executive and the Courts, and concludes that while the Attorney remains a pivotal office for Judicial system, the Courts cannot rely solely on the Attorney as an advocate for the Courts within government or to the public. The paper review the three principal areas of Judicial and Executive interface, namely in the appointment of Juges, in the resourcing of the Courts and in the maintenance of public confidence in the Judicial system. It is concluded that profound change has occurred or is occurring which the courts must be mindful

1

Hon Justice M H McHugh AC “Tensions between the Executive and the Judiciary” (2002) 76 ALJ 567.

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of. Finally, the paper proposes some suggestions as to how the interface between the Executive and the Judiciary might be improved.

The Attorney-General – First Law Officer and Politician The Attorney-General is an office of longstanding which can be traced back to the middle of the thirteenth century. The first Australian Attorney-General was appointed in the New South Wales colony in 1824. The duties and responsibility of the office stem from the prerogative powers of the Crown and from statute. Fully describing the duties and responsibilities of the office of Attorney-General (as opposed to the duties of the office holder as a Minister and a member of Parliament) is somewhat akin to the arguments about codifying the powers of the Governor-General which accompanied the Republican debate. It’s easy enough to list the uncontroversial aspects, but it is a different matter when it comes to that part of the Attorney’s role based on conventions and custom. The uncontroversial powers are summarised in the Queensland AttorneyGeneral Act 19992 as: „

The presentment of indictments.

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The entry of a nolle prosequi on an indictment.

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The granting of immunities from prosecution.

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The giving of undertakings to a person not to use or to make derivative use of information or things against the person in proceedings other than in relation to the falsity of evidence given by the person in a proceeding.

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The enforcement of charitable and public trusts.

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The bringing of proceedings to enforce and protect public rights.

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The grant of fiats to enable entities that would not otherwise have standing to bring proceedings to enforce charitable and public trusts or to enforce and protect public rights.

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The challenging of the constitutional validity of legislation that affects the public interest.

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The appearance before a court to help the court where appropriate.

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The advising of the Executive Council on judicial appointments.

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The institution of proceedings for contempt of court in the public interest.

2

Queensland, the Australian Capital Territory and the Northern Territory have specific legislation dealing with the powers of the office of Attorney-General. See further: Law Officer Act 1992 (ACT) and Law Officers Act (NT).

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The making of applications for judicial review to correct errors by courts and tribunals.

The Queensland legislation has its genesis in the famous Fitzgerald Report of 1989.3 The report concluded that in Queensland the office of Attorney-General had become “distorted” in terms of its proper operation within the Westminster system of government. The report argued: “Traditionally the Attorney-General is not only a member of the Executive but the Chief Law Officer of the Crown. There has been some debate upon the extent to which these latter functions enjoy autonomy from Executive control, but as Chief Law Officer, the Attorney-General has extensive powers and discretions which are intended to be exercised in the public interest including power and discretions with respect to the initiation, prosecution, and discontinuance of criminal proceedings. The Attorney-General also has primary responsibility for legal advice in relation to matters of public administration and government. The proper performance of such functions is dependant upon impartiality and freedom from party political influences, which is threatened if the Attorney-General is subject to cabinet control and parliament is effectively dominated by the Executive.”4 In turn, the Fitzgerald Report on this aspect was subject to a 1993 report by the Queensland Electoral and Administrative Review Commission (EARC). EARC argued that practical affect would be given to the Fitzgerald Report’s conclusions by the enactment of specific legislation establishing the office of Attorney-General and listing the powers of the office. The EARC recommendation was not taken up by the Goss Government and indeed, a parliamentary committee concluded that legislation should “not be adopted at this time”.5 The legislation came back on the agenda following a local political controversy which saw the Attorney-General in the subsequent Borbidge Government, Mr Beanland, refuse to resign office following a vote of no confidence in him by the Parliament. Upon its election in 1998 the Beattie Government proceeded with the legislation to establish the office of AttorneyGeneral and to list the functions and powers of the office. The Act reserves the traditional functions, powers, prerogatives and privileges of the Attorney-General at common law or equity or by virtue of tradition or usage.6 As explained by Attorney-General Foley in his second reading speech: “Identifying the powers and responsibilities of the Attorney-General would present considerable difficulty to the average person. This Bill sets out various powers and responsibilities of the Attorney-General in a way which makes the law more accessible. However, recognising the powers are rooted deeply in the history of the common law system, the Bill does not attempt to exhaustively codify them or the way they are carried out. This 3

Report of the Commission of Enquiry into Possible Illegal Activities and Associated Police Misconduct. Fitzgerald Report at 138. 5 Parliamentary Committee for Electoral and Administrative Review, Report on Review of the Independence of the Attorney-General (1993). 6 Attorney-General Act 1999 (QLD) section 8. 4

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will ensure the Attorney-General’s powers are not fixed in time and are able to continue to evolve.”7 It is the role of the Attorney-General based upon convention and custom which is of most importance to the judiciary. This role is notionally based on two grounds. Firstly, the duty of the Attorney-General to act “independently” of cabinet and party in exercising the discretionary prerogative powers. The second ground is that the Attorney-General should act as a “guardian of the public interest”. As noted by the Fitzgerald Report, there is some debate as to the extent which the Attorney-General exercises functions independently of the Executive. The debate really flows from the Attorney-General in England being a quite distinct office from that in Australia. In Australia, the Attorney-General is first and foremost a Cabinet Minister, Parliamentarian and politician and then the first law officer. This is not as pronounced in England and some other Commonwealth nations.8 For his part, the Federal Attorney-General Daryl Williams QC identifies the reasons for the decline in the “first law officer” aspect of the Australian AttorneyGeneral as including: „

The creation of an independent statutory office holder to handle prosecutions.

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Changes in the way which legal services are provided to the Commonwealth.

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A decline in the use of relator actions.9

This leads to the Federal Attorney’s conclusion: “That the perception that the Attorney-General exercises important functions independently of politics and in the public interest is either erroneous or at least eroded.”10 The former Chief Justice and Attorney-General of South Australia, The Hon Len King AC QC, also questions the application of the English convention about the Attorney exercising prerogative and prosecutorial powers independently of the Cabinet. He argues that the collective view of Cabinet should be preferred to the individual opinion of the Attorney. Equally, proper accountability is enhanced by Cabinet involvement.11

7

Attorney-General Bill 1998 Second Reading Speech, Hon M J Foley MLA, Daily Hansard, 6 August 1998 at 1736. 8 See J Edwards, The Attorney-General, Politics and the Public Interest (Sweet and Maxwell, 1984). 9 Hon Daryl Williams QC, “The Role of the Attorney-General” speech to Melbourne University 27 September 2002. 10 Hon Daryl Williams QC “Who speaks for the Courts?” in Courts in a Representative Democracy (AIJA, 1994) at 192. 11 The Hon L J King AC QC “The Attorney-General, Politics and the Judiciary” (2000) 74 ALJ 444 at 449 to 452.

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In my view, both Williams and King are quite correct. An Australian AttorneyGeneral is a Minister with particular responsibilities. Like all Ministers, the duty to serve the public interest is viewed through the prism of real politics. Hopefully and mostly, good public policy equates with good politics but this will not always be the case. None of this is a great revelation. What is important is how it plays out in the relationship between the Minister and the various constituencies which the Minister deals with. It is also important to understand the dynamics of power within the Executive which dictate how effective a Minister will be in delivering outcomes for their constituents.

The Courts and the Attorney-General In considering the role of the Attorney-General, EARC recognised the critical relationship of the Attorney with the Courts. It stated “The Attorney-General is in a unique position in relation to the Courts. The Attorney-General normally nominates appointments to the Judiciary. The Attorney is also the protector of the integrity of the Courts, whether by instituting proceedings for contempt of court or appearing in Court as a friend of the Court or speaking publicly on behalf of the Courts or Judges.”12 These responsibilities owed to the Court by the Attorney arise essentially in three areas, namely: „

The appointment of Judicial officers.

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The resourcing of the Courts.

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The maintenance of public confidence in the Court system.

Judicial Appointments Australia has a Judiciary of high standing and overwhelmingly the appointments made to the Courts by the Executive have been made on merit and not other extraneous considerations. Of course “merit” is a fairly elusive concept and what qualities are regarded as meritorious can be subject to differing opinions.13 The Attorney-General plays the pivotal role in the Judicial appointment process and will generally be responsible for the recommendation of a “meritorious” candidate to Cabinet. What this process involves varies somewhat from Court to Court and from jurisdiction to jurisdiction, but inevitably involves some degree of input form the Chief Justice and sometimes other Judges of the Court to which the appointment is to be made.

12

Report on Review of the Independence of the Attorney-General (1993) at 7. The Law Council of Australia has developed a policy on Judicial appointments which describes a range experience, professional and personal qualities which a judge should ideally possess. See further: Law Council of Australia “Policy on the Process of Judicial Appointments” 16 March 2002. 13

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Notwithstanding initiatives such as advertising for some Judicial positions and the formalising of the consultation process, at the end of the day the Attorney has the responsibility of recommending a preferred candidate. Given the critical nature to the proper operation of the justice system and more broadly, to a functioning democracy, of a fully equipped and independent Court system, this is one area where party political, or other extraneous considerations must not lead the Attorney to doing anything other than act in the public interest. As Federal Attorney-General I was often spoken to by Parliamentary colleagues and others in relation to individuals it was thought would make good appointments to various Courts. However, in making these suggestions there was never any inference that I should not appoint the best person for the job. There was only one occasion where I had difficulty with a senior Cabinet colleague who was strongly pressing for the appointment of a person to a senior Judicial position. I had formed the view that the person being pursued would not be appropriate for this position and it would not be in the interests of the Court for the appointment to be made. After a number of heated discussions my colleague did not further press the matter and it was not subsequently raised when I took my preferred candidate to Cabinet for approval. Maintaining the integrity of the appointment process can be one of a number of examples where the relative “strength” of the Attorney vis-à-vis other Ministers is important. As Justice Dowd of the NSW Supreme Court and a former NSW Attorney-General has said, the capacity of the Attorney to act independently of political and other considerations depends largely upon the personal qualities of the Attorney and other Cabinet Ministers. Justice Dowd told the EARC Enquiry into the Attorney General: “The mixture of each Cabinet and the relative power of the Premier, the Attorney-General and Cabinet members will determine the extent of the Attorney-General’s power and thus his ‘independence’. An assertive Premier or strong Cabinet may oblige a less assertive Attorney to conform to the will of Cabinet.”14 There is a very clear distinction between an inappropriate appointment based on lack of “merit” and the legitimate entitlement of the Executive to choose between a number of “meritorious” candidates. In my view the Executive has the entitlement to appoint as Judges lawyers who meet any objective criteria of merit and who also might be expected to hold a particular “world view” on say the Judicial method. For the Federal Executive the appointment of a High Court Judge is obviously of great importance. Beyond the consultation process prescribed by the High Court of Australia Act 1979, it is an appointment in which senior Cabinet Ministers and the Prime Minister will naturally take a particular interest. There is a convention that a candidate for Judicial office will not be asked by the Attorney-General or anyone from the Executive as to how they might determine 14 Electoral and Administrative Review Commission, Report on Review of Independence of the AttorneyGeneral (1993) at 13.

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a particular issue which might come before their Court. Rather, the questions which have been considered proper to ask have been limited to the willingness of the person to accept appointment and whether there were any matters in the person’s background which might cause embarrassment to the Court or to the government if the appointment were to proceed. Recently the media carried some articles indicating that the Federal AttorneyGeneral was “interviewing” prospective candidates for the Bench, including the High Court. The Attorney explained that any discussion that he had held went to the two points about availability and background. He also said however, that it was his practice to consult very widely on Judicial appointments and as various opinions about potential candidates had been expressed to him, it was only fair that a candidate should be able to respond to the comments that had been made. The fact that there is a convention in Australia that prospective candidates for Judicial office are not to be quizzed as to their views on how they might decide particular matters can be seen as one of the pillars protecting Judicial independence. In other words, the person should not be perceived that they were only appointed as a Judge on the understanding that they will decide matters in a way which was desired by the Executive. At least for the High Court, the general approach a prospective Judge might take to the role is the subject of inquiry by the Executive. If the prospective High Court Judge is already a Judge, then judgements will be read as well as speeches and articles examined. Questions will be asked of colleagues. It may seem only a short step from inquiries of this type to “interviewing” the candidates and asking directly their general view on Commonwealth/State issues or the scope of the external affairs power for instance. In the United States, the Judicial appointment process is not so coy about examining the opinions of Supreme Court and other Judges. Confirmation hearings enable the legislature to test the choice of the Executive for high office. If the convention about appointments in Australia was to move to a process which involves the interviewing of candidates on their views on say particular aspects of constitutional interpretation, then it is highly arguable that the process should be formalised and open to a degree of public scrutiny. Complete control of the appointment process by the Executive government is only tenable in conjunction with the convention that the Executive has not abused this power and has appointed non-party political Judges on grounds of merit. Having said that, the appointments made by the Federal government, current and past, have clearly satisfied the merit criteria. Resourcing of the Courts15 While acknowledging the essentially political role of the office, The Hon Len King AC QC argues that the Attorney-General has particular duties within the Executive to have Courts adequately resourced. He states 15

This section is based on my paper “Fighting the Fiends from Finance” contained in “Beyond the Adversarial System” Federation Press, editors Stacy and Lavarch at 10.

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“The Attorney-General must be the voice in government which insists on sufficient funds to provide adequate resources for the operation of the Courts.” He makes the point again and in slightly stronger terms “It is the Law Ministers function resources be provided and to performing Judicial system is so pruning must never be allowed to effective justice.”16

to demand of Cabinet that adequate explain publicly why an adequately fundamental to society that financial impair its ability to deliver prompt and

With the greatest respect to The Hon Len King AC QC, I think these comments stem more from his experience as Chief Justice than as Attorney-General. “Demanding” funds is no guarantee that the money will be forthcoming. It is useful to understand how the budgetary and increasingly the policy process works within government. In the Federal government, at the core of the budget process is the work of the Expenditure Review Committee (ERC). The ERC is a Cabinet sub-committee and is notionally Chaired by the Prime Minister. Membership varies but always consists of the Treasurer and the Minister for Finance as well as a number of Ministers in significant expenditure portfolio such as Health, Social Security and Eduction. The ostensible role of ERC is to settle the Commonwealth’s expenditure program so as to ensure that individual departments meet overall budget goals. In practice the role is much wider than this and encompasses a major policy role for the whole of government. In broad terms, the ERC commences its work by determining the framework of budgetary and policy outcomes which the federal government aims to achieve in a particular year. This entails settling the economic aims of the budget, that is the level of budget surplus or deficit, and identifying those public policy areas to be targeted. Individual Ministers and departments are advised of these decisions. They are not told of the actual expenditure outcome which the federal government seeks to achieve, but are given indications of the savings or expenditure tasks that their department will be expected to contribute. In response, the Ministers and the departments produce a budget submission which details each expenditure program within the department. In an age where budgetary restraint is viewed as a paramount policy and an economic goal in itself, it is naturally difficult to achieve increases in particular programs or the funding of new policy initiatives. Accordingly, the starting point is that all new policy programs will have to be fully offset within the department’s existing expenditure. Beyond this goal each department must also contribute to achieving the whole of government expenditure outcome. 16

The Hon L J King AC QC “The Attorney-General Politics and Judiciary” (2000) 74 ALJ 444 at page 454.

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This means that departments are under pressure to identify and offer up saving initiatives or to provide additional revenue raising items. Only if there is a particular policy goal which the government has determined that must be achieved, for instance increased resources to Australia’s national security agencies, will the relevant department and agencies be spared from the policy and expenditure rigor. Experience has indicted that departments and Ministers are proficient in promoting new spending but are less adept at identifying savings. To overcome this the Department of Finance allocates officers to “ride shotgun” over each department and produce savings options that are independent of the department. Although this process should be one of oversight only, it often leads to substantial policy change. The work of the Department of Finance results in the production of a document known as a “Finance Green”. This document nominates a long and frequently draconian list of spending cuts and program demolitions. The resultant ERC process thus usually consists of individual government departments fighting off these Finance Department proposals. Success in maintaining and improving a budgetary position for a Minister depends on a number of factors including the political clout or cunning of the Minister and senior departmental officials. While Finance Department proposals are sometimes a useful prod at ensuring that Ministers properly prioritise and apply discipline to their areas of responsibility, there is a danger that because the entire process is driven by budgetary rather than public policy outcomes, the resultant policy is quite poor. At the federal level and in South Australia a substantial buttress for judicial independence is provided by the self-administration by courts of their own budget. This enables the Court, and not the Executive, to determine the priorities for allocation of resources. It does not nor should it quarantine the Courts from the overall financial disciplines applied across the public sector. The Commonwealth Courts have lived with the rigours of the “efficiency dividend” and other strictures from the Finance Department. New funding, when provided, has been linked to performance indicators and other criteria. Court Registrars and Financial Officers have known the joys of price deflators and other indexes when attempting to obtain additional funds to maintain services. Lectures on the fundamental importance of the Judicial system to the Cabinet by the Attorney-General will in my experience be met with glazed eyes and some level of hostility. In politics a hospital waiting list will trump a long call over list every time, and an Attorney will always be hard pressed to convince an ERC of the need for extra funds. This is not to say that Cabinets don’t recognise the fundamental importance of a properly resourced and functioning Court system. Clearly they do. It’s just that the perceptions and understanding that may be held across the Executive of the level of resources needed and the particular importance to be given to priorities

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established by Courts may not match the expectations held by Judges and their administration. Maintenance of Public Confidence in the Judiciary Last year witnessed a robust debate about the role the Attorney-General should play as a defender of the Courts and individual Judges. The groundless allegations raised in Federal Parliament about High Court Justice Michael Kirby were a particular catalyst for this debate. The Federal Attorney-General’s response to the allegations drew a range of criticisms, most notably and strongly argued in a statement from the Judicial Conference of Australia.17 The Law Council of Australia was also highly of the government reaction to the allegations. The then President of the Council, Tony Abbott, strongly defended the Court and the Judge and in a thoughtful speech outlined the role the Attorney should have taken in response to the allegations.18 The Federal Attorney-General first expressed his view in 199419 that it has never been clearly articulated or accepted that Attorneys-General in Australia have had a duty to publicly defend the Judiciary. He has amplified his position on several occasions,20 most recently in a well researched paper delivered to Melbourne University in September 2002.21 The Attorney argued that the relationship between the Courts and the Executive is complex. 22 On occasions the common interests of the Executive and the Judiciary may witness publicly expressed support by the Attorney-General or other members of the Executive for the Court against criticism. But this is not to be viewed as evidence of a duty of the Attorney to defend the Court on public interest grounds. Rather, it seems that this should be viewed as an example of shared mutual interest. By this theory, when the interests of the Executive are suited by a Court decision and criticism comes from a political or media opponent of the government, then it is not unusual for there to be expressed public support for the Court and the Judicial system. However, this support is not really to be taken as support of the institution of justice, but rather support for the particular decision which coincides with the interests of the government of the day. Accordingly, it would seem that when a decision by a court is perceived to be against the interests of the government of the day, then the Court can expect no intervention by the Attorney to confront the critics but rather that the critics will in fact be members of the Executive.

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Reproduced at (2002) 76 ALJ at 268. Tony Abbott “The Attorney and the Courts” speech to Melbourne University 27 September 2002. 19 Hon Daryl Williams QC “Who Speaks for the Courts” in Courts in a Representative Democracy (AIJA, 1994) 183. 20 Hon Daryl Williams QC “Courts and the Media: What Reforms are Needed and Why” 1999 UTSLR 13. 21 Hon Daryl Williams QC “The Role of the Attorney-General” Speech to Melbourne University 27 September 2002. 22 Ibid. 18

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It is unrealistic to think that an Attorney-General will publicly tackle a Prime Minister or Premier in criticising a Court. It is sad to think however that there is no institutional understanding or commitment to the role of the Courts and that members of the Executive will not respect the institution even when individual decisions are against an immediate political objective of the government. Equally it is disappointing that interventions will only ever be motivated by political self-interest of the government. The Attorney then goes on to speculate why there has been increased criticism of the Courts by the Executive. In doing so he concentres particularly on the High Court. He notes the historical development of the jurisdiction of Court, in particular the removal of civil appeals to the Court as a right and the increased importance of the Court’s law making role. He argues the more open recognition that Courts in fact make law rather than declare law, combined with what the Attorney believes to be a greater level of judicial activism in law making and the reliance on community values as a touchstone for testing and changing legal principle will inevitably increase concerns about judicial accountability, and will lead to more criticism. He then gives some examples of the High Court’s human rights and native title decisions, which have attracted severe criticism from some politicians and media commentators. In other words, the High Court in particular is dealing with subject matters which are inevitably more controversial and as a result, criticism will flow. This point I think can be readily accepted. It is however the nature of the criticism and the stridency of it from individual Ministers which is a cause for concern rather than that criticism in itself is made. The clear implication in the Attorney’s analysis is that if the High Court withdraws from a particular judicial methodology and decides matters in an particular way, then it will not be subjected to Commonwealth Executive criticism. Equally, if the Federal Court would be more sympathetic to government policy objectives in relation to migration matters then the interventions of the Immigration Minister which led to the strong reaction by the Federal Court last year, would not be necessary. It is true to say that the Executive will not criticise Courts if they make the “right” decisions. But this does somewhat make a mockery of the notion of a independent Judiciary, acting in accordance with the rule of law, within a governmental system based upon the separation and diffusion of power. The issue is not criticism of decisions, but the attack on the integrity of the system which could shake public confidence in the legal institution. The duty to protect and defend, on public interest grounds, the judicial system is held by the Attorney-General. But it is a duty owed equally by the Prime Minister or Premier and other members of the Executive. It is the collective responsibility owed by each arm of government to the other, based on the underlying recognition that each institution exists not for their own ends, but for the good of the public.

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I agree with the Federal Attorney-General, when he argues that it is not so important as to whether or not there has been a tradition of Australian Attorneys-General intervening in the public debate to support the Courts. What is important is the principle. Surely that principle concerns the obligation of the Courts and the Executive to ensure that the inevitable tension which flows form the separation of powers is handled constructively and not destructively.

Improving the Interface The inevitable tension between the Executive and the Judiciary can be creative but easily is destructive. How can the interface be improved to build a creative relationship? Here are some suggestions. Improve the Understanding of the Respective Functions and Operations of the Courts and the Executive Australian Parliaments have always had a large number of members with law degrees and many with experience with legal practice. In fact a majority of the members of the current Federal Ministry have a law degree. Within the ranks of the Judiciary there is a sprinkling of Judges with experience of government, either through direct roles within the Executive or more commonly having acted extensively for government while in private practice. However, it would be fair to say that on the whole the level of understanding within the ranks of Judges and in Australian Parliaments of the role and functions of the other arms of governments is not great. Shared experience and understanding is an essential basis for good relationships. Ignorance or knowledge gleaned indirectly through the popular media can readily create misguided perceptions. To build mutual understanding a number of initiatives could be examined such as: „

Adding to the newly elected Parliamentary members orientation programs run by the Federal and State Parliaments a session on the role and workings of the Courts. Perhaps a session might be organised by the AIJA or the National Judicial College.

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Periodic briefing sessions could be offered to members of Parliament, Ministerial Advisors and appropriate bureaucrats on current matters of interest to the Courts.

Equally, the programs operated by the National Judicial College and the AIJA might include sessions by senior bureaucrats and others on the workings of the Executive government and specifically the budgetary and public policy processes. Direct Relationship with Other Ministers As explained earlier, the budgetary and policy processes of government have become increasingly concentred in a small number of Ministers and Page 12

departments. Invariably the Attorney-General and his or her department will not be a key player in the setting of overall government policy. In these circumstances it would be prudent for the Courts to not rely solely on the Attorney as the contact point between the Courts and the Executive. It would be wise for the Courts to establish relationships with other Ministers and their advisors. By this I do not mean to suggest that the role and importance of the Attorney to the Courts should be downgraded, but rather the reality of the Attorney’s likely influence in the government needs to be recognised. Over the years there have been a number of Attorneys-General who have been extremely powerful within their respective governments. Equally, it is quite possible that an Attorney may have less influence. In any event, the domination of the economic Ministries and the increasingly presidential nature of Australian politics means that the Prime Minister and Premiers respectively hold paramount policy and financial power within governments. Against this backdrop it is unrealistic to simply deal with the Attorney and expect the Attorney alone to carry the fight up for the Courts in issues such as resourcing. A good relationship established with say the Legal Affairs Advisor of the Prime Minister or Premier together with some relationship with the Treasurer and Finance Minister would ensure a greater level of understanding of the needs and aspirations of the Courts. Clearly the importance of the Courts remaining independent of the Executive government is paramount in taking any step to deepen the relationship between the Courts and the Executive. Nonetheless the reality of the current and continuing political paradigm should be recognised and responded to.

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