YOU CAN TAKE THE JUDGE
OUT OF THE COURT . . .
Going to court
It was judges, not politicians, who decided that native title existed in Australia. Among settler societies, Australia is an anomaly in relying on the judiciary to act as the principal ‘recognition agent’ of Indigenous polities on behalf of the state.1 That it was the High Court’s decision in Mabo (2) that created the political and legal fact of the doctrine of native title in Australia gave rise to a cultural impression that the judiciary was the guardian of Indigenous rights against governments that had failed to recognise traditional property interests in the past and may well try to extinguish them in the future. When the High Court quashed the State of Western Australia’s attempts to wipe out native title and held that pastoral leases did not have an extinguishing effect, the perception was underlined. Under the NTA, the judiciary were cast as sentinels of the overall process given the responsibility for issuing the final determination as to whether native title existed and for exercising oversight of the NNTT. Although the schema of the NTA allocated much of the work to other actors, from the outset the legislation confirmed that the formal act of acknowledging the existence of native title belonged to the judges.
The Federal Court of Australia is a superior judicial body established under Chapter III of the Constitution, with general jurisdiction over civil matters arising under Commonwealth law.2 Established by the eponymous Commonwealth Federal Court of Australia Act 1976, the new institution began operation on 1 February 1977.3 At its inception the Federal Court had twenty members and a fairly narrow jurisdiction, evolving, by the year 2000, to a court with 50 judges exercising power under 125 different statutes.4 Appeals from a decision of a single justice of the Federal Court are made to a full bench of three judges and from there to the High Court of Australia. The addition of the native title jurisdiction to the Federal Court created considerable and unusual challenges for the administration of justice; as one judge put it with typical curial understatement, land claims are ‘not conventional civil proceedings’.5 In order to prove a native title claim, it is necessary to give compelling evidence of the internal functioning of a society as well as demonstrating around 200 years of socio-historical continuity, generally requiring testimony from numerous Aboriginal witnesses as well as anthropologists and historians, possibly accompanied by archaeologists, linguists and experts from other more arcane disciplines. The scale and complexity of native title litigation was brought home by Yorta Yorta and Ward: in the former, the Court sat for 114 days and heard 201 witnesses, while the latter took less time, coming in at 83 days, but also with large numbers of people giving testimony and often in the challenging terrain of the far north of Australia.6
The changing role of the Court
Under the original NTA, although the Court was required to make the final orders giving force to any consent determination that was reached, the Tribunal held responsibility for the overall management of the claims process. Being ‘referred’ to the Federal Court was a fate to occasion apprehension, which parties were strenuously encouraged to avoid where possible. Against the preferred option of mediation under the auspices of the Tribunal, litigation was conceived in an inherently negative light as an expensive, time-consuming, inflexible and impractical option of last resort for applications that had ‘failed’ to be resolved through mediation. In the event, only three claims were determined by the Federal Court in the period between 1994 and 1998. As early as 1995, French pointed out that the NTA placed ‘the NNTT and the Court end to end in an inflexible “series” arrangement’ and suggested amendments to the Act, allowing for a more supple relationship between the bodies.7 The 1998 Amendments largely took up French’s suggestions, and ‘effectively transferred the overall management of native title cases from the NNTT to the Federal Court’.8 All new claims were also to be filed with the Court, to then refer across to the NNTT for registration testing and mediation, while retaining judicial oversight. Parties could, in theory, now be engaged in interlocutory litigation on particular issues of law or fact while still continuing with mediation. The statutory redesign of institutional responsibilities made the Court a ‘driver’ of the native title process with significant instrumental power to ‘propel claims down critical paths’.9 The Court even possessed the power to order its own mediation of native title matters as an alternative or in addition to that conducted by the Tribunal, at least until the further Amendments described at the end of this chapter.
In addition to substantially increasing the Court’s workload, the expanded native title jurisdiction also posed an unusual challenge in terms of judicial administration. The common law legal system proceeds on the general basis that actions are discrete from one another. However, in the context of native title, not having regard to regional, state and national linkages and considerations would have led to the complete dysfunction of the system; not only did many native title claims partially or wholly overlap one another geographically, but parties, peak bodies, lawyers, expert witnesses and crucial issues recurred across cases within an overall context of a limited pool of resources. In recognition of the peculiar interconnectedness of the native title jurisdiction, the Court established a number of mechanisms for considering the conduct of claims on a collective basis. In the course of the 1997–98 financial year, Chief Justice Michael Black directed the establishment of a ‘Native Title Coordination Committee’ to assist with the administration of the Court’s newly expanded jurisdiction.10 Later, the Court established national, state and territory ‘User Groups’ to ‘explain its procedures to the people who use the Court; and to allow the users to explain to the Court their requirements and the extent to which the procedures can be modified to work better’.11 Early in the new millennium, the Court also initiated a practice of conducting regional case management conferences ‘to hear from applicants and respondent parties on a range of matters, including the strategic listing of matters, the prioritising of cases, and the role of mediation’, which allowed ‘parties to re-define their priorities on a regional, rather than on a case-by-case, basis’.12
When the Amendments came into effect on 30 September 1998, the 58 claims that had already been referred to the Court were joined by another 778 native title determination applications.13 The transfer required a considerable effort of judicial administration as the Court brought order to applications that had often been drafted rather lazily under the loose terms of the unamended NTA. The Court had to organise matters into appropriately configured directions hearings, as well as dealing with the numerous parties to claims. In order to meet the exacting standards of Federal Court proceedings, all claim documentation required substantial redrafting and supplementation with affidavits and other materials. The Court organised the new work by introducing ‘a national allocation protocol for the case management and listing of native title matters’, under which each claimant application was assigned to a ‘Provisional Docket Judge’ who, with the assistance of a Deputy Registrar, would be ‘responsible for managing the case’ unless and until ‘substantive action’ was required, such as the hearing of a contested interlocutory application or a ‘main hearing’, at which point the matter would be ‘referred to the Court’s Native Title Secretariat for substantive allocation to a trial judge’.14 The initial appearances before the Court sometimes tended towards the chaotic, as parties that were more used to the lackadaisical approach of the Tribunal administering the unamended NTA became exposed to judicial dispensation. Gradually, the bedlam was reduced to an orderly process and the parties adjusted to the new formalities.
The need for speed
It was hoped and anticipated that the changes to the native title system brought in by the 1998 Amendments would increase the speed with which claims were resolved. In general, the Federal Court prided itself on the expeditious determination of matters brought before it and had adopted case-flow management principles as a way of guiding the timely administration of the judicial workload. The intention behind case-flow management is that ‘courts take over from lawyers much of the responsibility for controlling the course taken by litigation’ so as to avoid the kind of Jarndycean saga that drags on interminably.15 The adoption of managerial principles by a court is explicitly intended to influence the conduct of both judges and parties, by setting out a clear standard of ‘best practice’. The prevention of delay and the general reduction in the length of litigation is one of the fundamental aims of a more managerial approach to judicial administration. One of the ‘key case-flow management principles’ adopted by the Federal Court was ‘the establishment of a time goal’ within which cases would be disposed, necessitating ‘the implementation of practice and procedure’ designed to achieve the specified disposition rate.16 The Court adopted the laudable aim of having 98 per cent of cases concluded within eighteen months of commencement.
The Federal Court recognised that a ‘key factor’ in keeping to the eighteen-month ‘disposal rate’ was ‘the mix of cases’, because ‘some matters, such as bankruptcy proceedings, were innately faster to deal with than others’.17 The acquisition of the native title jurisdiction was quickly identified as a hazard to maintaining the average pace at which matters were being concluded. In the course of the 1999–2000 financial year, the Court expressly recognised that the resolution of native title claims could be expected to be unusually lengthy and adopted ‘a time goal of three years from commencement’ for the completion of both pending and new matters: double the period allowed for ‘normal’ litigation.18 The Court’s own calculations for 1999–2000 indicated that the ‘average time span from filing to disposition for native title matters determined by consent’ was ‘3 years and 5 months’ and ‘for matters determined by a trial judge’ the less precise ‘4 to 5 years’.19 Nevertheless, it was believed that the ‘time goal of three years from filing to disposition of native title matters’ would be achieved ‘through the active case management of matters, and the implementation and refinement’ of various related initiatives.20 As Graeme Neate observed, the Court would ‘not allow parties to delay indefinitely’.21
It goes without question that the Federal Court intended the time goal of three years to operate neutrally, not favouring any one party over another.22 Intuitively, it might be thought that the more swiftly claims were determined, the more ‘just’ the process would be for Indigenous people who had waited so long for the doctrine of native title to be recognised at all. ATSIC, for example, was fond of lamenting that justice delayed was justice denied.23 Ironically, though, because of the operation of the future act system, the procedural rights of native title claimants are in most cases stronger before their application has been determined. In one sense, then, the longer that the process of determining a claim takes the better it is for the claimants. In contrast, though respondents may be relieved of procedural obligations if a claim is dismissed, their existing interests are not devalued as a consequence of an application remaining on foot. As barrister Susan Phillips said in 2001:
It must be born in mind that future act procedures and non-claimant applications as well as compulsory acquisition procedures allow non-Indigenous parties to acquire new interests or change uses without native title causing undue delay. The claims themselves do not create a prejudice to any interests with which they at best co-exist.24
The adoption of a three-year time goal, although formally neutral in effect and intended to be fair, did not affect all parties equally.25
Each year after the time goal was adopted, the Court’s Annual Report noted the various ‘initiatives’ that had been tried in a bid to see native title claims determined in accordance with the targeted disposition rate. Some mechanisms, such as the use of videoconferencing and the timetabling of related matters for directions on the same day, were easy and obvious timesavers.26 At times the Court’s desire to be seen as proactive in trying to encourage swiftness seems to have led to just a touch of administrative overstatement. In 1999–2000, for example, the Court asserted that the ‘combining of applications’ as an initiative of its own, notwithstanding that the combination of native title claims was, from 1998, specifically provided for in the NTA and could only occur on the applicants’ motion.27 Similarly, in its 2000–01 Annual Report, the Court claimed that ‘[a]ctive judicial case management of native title cases’ had ‘led to a substantial number of claimant applications being amended, combined, withdrawn or discontinued’, a relationship of cause and effect that seems again overestimated, given that it was the force of the new registration testing regime under the amended NTA that was far more likely to have produced the result in question.28 On other occasions, the Court’s ‘initiatives’ appear little more than dressing ordinary professional conduct in the brogue of managerialism. The ‘use of extensive consultations and information sharing’, for instance, sounds suspiciously like a gilded description of the act of ordinary professional engagement.29
Co-existent with ‘doing better justice’ as a reason for resolving litigation more quickly were certain efficiency imperatives that followed the Court’s adoption of an outcome and output accounting structure in accordance with accrual budgeting arrangements. Beginning in 1998–99, the Court’s ‘management of cases and deciding disputes according to law’ was characterised as ‘Output Group 1’ in end-of-year accounting.30 Key performance information about ‘Output Group 1’ included the number of ‘cases disposed’ and the average cost of disposition.31 In order for the Court to demonstrate organisational effectiveness, the ‘price’ of ‘cases disposed’ would need to be reasonable and, presumably, in order to demonstrate improvements in efficiency, the average cost of determining matters would need to decrease year by year. The complexities of the native title jurisdiction were a threat because a few long native title cases could significantly raise the average unit cost of determining cases, making the Court appear as if it was becoming less productive. Speed, then, had become an end in itself, a proposition borne out by the Court’s claim in 2000–01 that one of the benefits of the three-year target was that it acted ‘to attribute responsibility to those who can contribute to, not only the resolution of the [native title] matter, but the achievement of the time goal’.32 Ideas of justice had become at least to some extent conditioned by the ideology of productivity.
When, by the close of 2000–01, there was yet to be a single claim resolved by substantive determination at the Court’s nominated disposition rate,33 the Native Title Coordination Committee still defended the three-year disposition target ‘as a reasonable working estimate’ but was forced to concede that ‘a number of practical limits’ were likely to get in the way of ‘achieving the goal’, even if only ‘in the short-term’.34 In August 2001, the Federal Court remained ‘optimistic that the publication of a time goal’ would ‘focus the minds of Government, applicants and others on the need to resolve native title matters within a time frame that will be acceptable to their respective constituency and related stakeholders’.35 However, shortly afterwards and following a meeting of the National User Group in October 2001, the Court’s Native Title Coordination Committee commenced a further review of the disposition target, noting that there were ‘strong contrary views on the three-year disposition target, with some parties and interest holders believing it is too short and others believing it to be too long’.36 By the end of the 2001–02 financial year the Committee was ‘still considering the issue’, but maintained the view that it was ‘desirable to keep a national target’ even if ‘noting that this may be varied at a regional level in light of information provided by relevant user groups or case conferences’.37 Stubbornly, the average disposition rate was refusing to move.
The Court’s preoccupation with time targets was viewed with considerable apprehension by the NTRBs in particular. Although it was stressed on the part of the Court that it was ‘not the intention to place unreasonable pressure upon the applicants and parties’, the rep bodies experienced genuine anxiety about the possible operational impact of an enforced disposition schedule.38 In the absence of any increase in the level of funding, the Court’s emphasis could well achieve what the Kimberley Land Council’s Peter Yu called ‘extinguishment by stealth’ if matters were pressed to trial without the time or resources for proper preparation.39 Although the reality of rep body under-funding was publicly recognised by more than one judge, communicating with the Court about concerns in relation to the disposition rate required delicacy; after all, it would be improper to try to influence how specific matters were dealt with outside of curial processes.40 In the event, the various forums for dialogue that had been established by the Court were used extensively to try and convey the extent of the under-funding and the strategic complexity in a respectful and open manner. In addition, ATSIC had facilitated representations to the Court by instructing a firm of solicitors to engage a leading senior counsel to write directly to the Chief Justice.41