This seminar is part of the ANU College of Law Visiting Judicial Fellow Program. The Program is designed to develop a greater understanding of the role and function of judges, by allowing Judges to share their knowledge and experience with the broader ANU Law community. Justice Alan Robertson is one of two Visiting Judicial Fellows in 2019.
This seminar seeks to identify what differentiates judicial decision-making from other decision-making, and to do so with particular reference to what judges of the Federal Court of Australia do in running their courts. It is necessary to concentrate on a particular court because, at least in relation to non-essentials, different courts have different methods.
The judges of the Federal Court hear and determine matters both at first instance (conduct trials) and on appeal (both from the Federal Circuit Court of Australia and from judgments of single judges of the Federal Court). This gives a different perspective, as does sitting to hear matters throughout the Commonwealth. It is a trial court and an intermediate appellate court.
The judges of the court will have personal independence in their decision-making. They will be independent of the Executive and of other parties. Hearings are required to be fair. This is often seen in light of the adversarial system. Hearings are required to be in public. Reasons are published. There is a strong emphasis on fact-finding and on the individual case. In non-essential matters there is greater variety of judicial method between courts.
In the Federal Court most of the evidence is written and much of it is documentary. There is a move towards paperless courts. Documents are filed electronically. Submissions are often (perhaps too often) written, although oral submissions still have an important place. There is less ‘orality’ than 20 or 30 years ago. In the Federal Court there have been no juries, except where required by s 80 of the Australian Constitution. This has implications for how trials are conducted. Should there be a uniform judgment style in terms of when it is necessary to write judgments, whether they should be long or short and for what audience or audiences they are written?
There will be time for comments and questions after the seminar.