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The latest issue of the Journal of Judicial Administration (Volume 34 Part 3) contains the following material:

Articles

There Is No Rule of Law When You Cannot Afford It – Andrew Cannon AM FAAL

Several reports in the last 30 years have identified that the common law adversary system is too expensive and too slow. It is not providing an effective rule of law. Our system has perverse cost incentives that drive this inefficiency and pre-trial processes that are designed to prepare for trial when most cases resolve without a trial. The article discusses ways to improve the system. Better ways to calculate legal costs that are paid to the successful party are discussed. Earlier disclosure of evidence to the trial judge or magistrate should empower them to exercise more control over the fact-finding process. Parties should disclose how much they are claiming for damages rather than using filed offers to obtain indemnity cost orders. The primary reason for seeking a judgment is to be paid and a way to improve enforcement of judgment debts is discussed.

Protecting the Defendant’s Rights in Interpreted Cases: How Does Public Policy Shape “Good Practice” for Judicial Officers Working with Interpreters? – Ludmila Stern, Sandra Hale, Melanie Schwartz and Stephen Doherty

There is a vast body of policy documents aiming to protect the rights of criminal defendants who do not speak the language of the court. These policy documents, originating from the 1945–1946 Nuremberg trials, range from international declarations and covenants to national legislative acts and policy, to in-house guidelines and protocols. While there has been a concerted push towards improved access to justice through adequate interpretation in bilingual courtrooms, a range of parliamentary inquiries, reports and reviews suggest that “good practice” recommendations have not always translated into practice. This is particularly grave with regards to legal and criminal court interpreting in First Nations languages. A primary reason for this gap between policy and practice is that there are few to no effective mechanisms to mandate and/or enforce existing policies, recommendations or even legislation. This paper presents an analysis of the key documents on working with interpreters in the criminal courtroom from different parts of the world, from the mid-20th century to the present. The discussion shows the evolution of public policy, while raising the question of the challenges of its implementation.

Current Approaches to the Use of Generative AI in Australian Courts and Tribunals: Should Australian Judges Have Guidelines Too? – Narrelle Morris

Generative AI (Gen AI) tools have had significant user uptake since late 2022, and Australians have proven to be no more immune to experimentation than anyone else. Recommendations about the use of Gen AI have now been issued by some Australian courts, legal professional societies and associations, and governments. Without a co-ordinated approach by courts and tribunals, however, the current guidance to litigants and legal practitioners differs significantly in approach. Moreover, only the Supreme Court of New South Wales has so far issued guidance to its judges on using Gen AI. This article argues that a more co-ordinated approach on court and tribunal rules regarding the use of Gen AI in litigation would be beneficial and, further, guidance to judges should be a part of it. The production of guidelines for judges by judges (assisted by technical experts) would help scope where the various tasks that comprise judicial work might permissibly overlap with use of AI generally and Gen AI specifically (assuming that the AI technology is up to the task and is of benefit), and where they definitively will not. Transparent guidelines will also help support public confidence in the judiciary and avoid perceptions of the existence of a double standard around Gen AI use between litigants and legal practitioners on the one hand and judges on the other.

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For the PDF version of the table of contents, click here: New Westlaw Australia – JJA Vol 34 No 3 Contents.

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