Justice means another judge
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Justice means another judge

Fifth judge in the Supreme Court is essential to reverse trend of ever-increasing remand numbers, writes David Biles.

I genuinely do appreciate the fact that the ACT Attorney-General Simon Corbell has given us some useful data ("Streamlining will speed up Supreme Court", Times2, May 20, p5) to contribute to the public debate about whether or not the ACT needs an extra resident judge in the Supreme Court. In that article he has argued that the court is not understaffed and the problems of delay can be overcome by improved case management.

He draws this conclusion from an analysis of data produced by the Productivity Commission in its Report on Government Services 2013. The central element of his analysis of comparative workloads of higher courts is the number of civil and criminal lodgments per full-time judicial officer in the six states and two territories of Australia.

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He claims that this shows that "the ACT workload is less than or similar to most other jurisdictions, including a comparable small jurisdiction, Tasmania". The ACT is actually ranked fifth out of the eight jurisdictions, which does not sound too bad, but it is clear that the ACT rating is considerably lower than the Australian average.

At first glance these figures look persuasive, but a closer examination casts serious doubt on the conclusion. A hint of the problem may be found in Mr Corbell's article where towards the end he wrote, "The government has implemented a range of short and long-term measures to improve access to justice and reduce delay. Fewer bail applications are now heard in the Supreme Court. The jurisdiction of the Supreme Court has been narrowed so that it only hears the most serious cases."

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All of these measures may be worthwhile, but they mean that the number of lodgments coming to the Supreme Court is obviously reduced and those lodgments which do reach the higher court must be on average more complex and more time-consuming than was previously the case.

For this reason, I believe that the notion of lodgments per judicial officer as a measure of workload is seriously flawed and is not a sound foundation upon which to base decisions of great significance for the whole of the ACT community.

Fortunately, the Productivity Commission report from which Mr Corbell drew the data for his analysis also contains other relevant information which, in my view, is more robust and less likely to be challenged. I refer, in particular, to Table 7.11 which may be found on page 7.26 of the chapter dealing with courts.

This table is headed "Judicial officers, full time equivalent, per 100, 000 people, by court level, 2011-2012", and it shows, for example, that for the year under review ACT had 1.4 judicial officers per 100,000 people while NSW had 1.7 (0.8 from the Supreme Court and 0.9 from the District Court).

The actual numbers for the ACT from which these ratios were derived were 5.3 full-time equivalent judges (that is four resident judges and 1.3 temporary judges brought in from elsewhere for specific tasks, including joining the three-judge Court of Appeal). For NSW, the numbers were 60.7 Supreme Court judges and 65.6 District Court judges.

The comparable ratios for the other Australian jurisdictions were: Victoria 2.1; Queensland 1.3; Western Australia 2.6; South Australia 2.2; Tasmania 1.4; and the Northern Territory 3.6.

It is clear from these figures that the ACT (along with Tasmania) is the second lowest Australian jurisdiction as far as the number of higher court judges is concerned.

For whatever reason the ratio for Queensland is even lower, while the Northern Territory is the best resourced, no doubt in response to the very special problems that are to be found in that part of the nation.

If one repeats this exercise including magistrates as well as judges, the result is much the same.

The ACT is still second lowest (this time joined by Victoria) and Queensland remains the lowest, while Tasmania moves up to fourth in the ranking.

Whatever way one does the analysis, and bearing in mind that the ACT Supreme Court only hears the most serious cases, in my opinion the need for an extra permanent judge is beyond dispute.

Furthermore, I believe that the process to make such an appointment should start now rather than wait until September as I have suggested previously.

I fully agree with the Attorney-General in his endeavour to ensure that the ACT courts are as efficient as is reasonably possible, but I don't believe that improved efficiency will occur without the number of judges being increased.

This discussion is not just about efficiency for its own sake; it is also about humanity, and, as far as I am concerned, it is particularly about the unacceptably high numbers of people we have remanded in custody.

The fact that well over one third of our prisoners are remandees is a matter of acute embarrassment to all thinking members of the ACT community and will only be reduced when we have a properly staffed Supreme Court that gives high priority to that specific problem.

It should be remembered that about half of all remandees in custody are either acquitted or sentenced to non-custodial penalties when they eventually have their day in court, and

for these people there is no compensation for the time spent in custody.

It makes a mockery of our claim that the Alexander Maconochie Centre is a human rights institution when we, as a relatively well- educated and reasonably wealthy community, allow this situation to drag on month after month and year after year.

The appointment of a fifth judge to the Supreme Court is the essential first step to reverse the trend towards ever-increasing remand numbers.

David Biles is a Canberra consultant criminologist. biles@netspeed.com.au

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