Federal Court of Australia
Submission to the Australian Department of Foreign Affairs and Trade
Foreign Policy White Paper, 2017
Introduction
The Federal Court of Australia has supported developments in the rule of law, judicial independence and the
development of judicial services around the world for decades. Based on this experience, this submission
responds to several of DFAT’s questions in its call for public submissions through the lens of law and justice being
a central pillar within Australia’s foreign policy including its overseas development assistance program.
Interests, Values and Relationships
Central to Australia’s national interests are peace and prosperity beyond its borders, particularly in the Asia and
Pacific Regions. Justice is indivisible from those priorities as it is fundamental to regional and local security, social
stability, economic development and individual wellbeing. There is a well-recognised link between adherence to
the rule of law, judicial independence and respect for human rights and economic development and social wellbeing. For the first time, justice and governance are included in the global development agenda through the
United Nations Sustainable Development Goals (SDG). Many of the nations in the Asia and Pacific regions are
members not only of the United Nations but also of the Commonwealth. In 2003, Commonwealth Heads of
Government endorsed the Latimer House Principles on the Accountability of and the Relationship between the
Three Branches of Government. Australia, through its strong judicial governance structure, is well placed to
support not only this United Nations agenda but also to promote to fellow members of the Commonwealth, the
benefits of adherence to the Latimer House principles.
To date, development processes, including judicial reform, have addressed, but not ameliorated inequalities.
Inequality, in turn, undermines political stability, peace and security, economic growth, social welfare, and
development. As such, the factors affecting growth and development need to be re-evaluated, and the pivotal
role of fairness as a governance ideology considered paramount. Fairness and justice are fundamental
prerequisites to societal development. Embedding fairness into development priorities will not only increase
efficiency, but also effectiveness, transparency and integrity. Fairness based on the rule of law, incorporating
human and civil rights principles, is pivotal to undoing unjust processes, abuses of power and the denial of
fundamental rights. Not only is fairness fundamental to civic wellbeing, but it is a precondition for sustainable
economic development and long-term peace and security.
Australia should prioritise deepening relationships with the countries geographically closest to it and with which it
has, or might have, strong economic ties. Deepening relationships will be possible by supporting each partner
county’s strategic agenda where there is synergy with the Court’s own, and by remaining true to Australia’s and
thus the Court’s fundamental values. Diversifying relationships will be possible by facilitating linkages between
like entities in each country. Direct court to court relationships, for example, have proven to be most effective
and yield better results, measurable and immeasurable, than relationships with international courts and other
types of entities. In the Federal Court’s experience, court-to-court development assistance has enormous
potential to produce substantive and far-reaching justice sector reform in partner countries and can consequently
impact positively on peace, security and stability in the region, whilst also enhancing Australia’s standing as a
good ‘global citizen’.
A key practice that the Federal Court has honed through its development approach is fostering long term
relationships with superior courts of countries in the region. The basis of these relationships needs to be founded
on partnership, mutual trust and respect and the relationships are made possible by developing strong crosscultural awareness, communication skills, sensitivity to context specific practices, and recognition of prevailing
power structures. The key to these relationships is developing them at both the individual and institutional level.
Clarifying and honouring expectations are of critical importance, and acknowledging available capacity within
jurisdictions to lead development process whilst maintaining the Court’s own needs, protocols and preferences.
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Alongside this, reflection, assessment and ongoing improvement are central themes in the Court’s collaborations,
allowing a shared understanding about why certain initiatives work well, and what can be done to improve
outcomes in the future.
Trade and Economic Progress
The Federal Court has jurisdiction to hear trade related disputes in Australia. It is an internationally respected
institution, on the basis of which companies feel confident to do business in Australia and with Australian
companies, knowing that any disputes will be resolved expeditiously and fairly. Positioning Australia to take
advantage of the global economy and maximising trade and investment in other countries requires the same level
of confidence on the part of Australian businesses. The Federal Court has worked with several jurisdictions to
promote individual and institutional capacity to similarly resolve commercial disputes. Without continuing to
build this capacity to a level of competence and efficacy, Australian businesses will face impediments to full
participation in the global economy.
Assets
There is unparalleled expertise available from within Australian government institutions. The Federal Court’s own
collaborations demonstrate the key assets available in Australia’s response to global development challenges.
Having collaborated with 52 countries and with international organisations such as the Commonwealth and the
Commonwealth Magistrates and Judges Association (CMJA) across almost 500 activities, the Court has significant
experience designing and managing judicial development initiatives globally. These initiatives have supported
around 10,000 people in various areas and resulted in a number of beneficial outcomes including improvements
in access to justice, efficiency in the administration of justice, competence of officers to deliver justice,
transparency, governance, accountability and governance, as well as building the capacity of local officers to plan
for and deliver on their own reform and development objectives.
The Federal Court works collaboratively with its partners to identify and prioritise needs, develop partner courts’
responsiveness to society and scrutinise the contextual specificities of jurisdictions. Through the Court’s extensive
experience, it has identified a number of key opportunities and lessons learned to assist in Australia’s future
directions. Key among these lessons are: 1) the need for peers and peer institutions/entities to collaborate, to the
exclusion of ‘outside’ entities. This assists in building rapport, trust and understanding. 2) The need to ensure that
programmes are allocated sufficient time and funding to produce and measure impacts. Moving beyond
piecemeal reform, into inter-generational partnerships for reform is, in the Court’s experience, the most effective
way of producing the level of change required to impact society and economies.
As a court, the Federal Court inherently understands what constitutes fair, efficient and effective justice, and it is
respected internationally as an institution that can effectively share attendant practices to deliver on these
objectives. The Court has created efficient, resilient and sustainable strategic alliances with judiciaries in many
countries; including Memoranda of Understanding (MoU) for judicial cooperation with Indonesia (since 2004),
Vietnam (2009), Papua New Guinea and Vietnam (since 2009), Vanuatu (since 2013) and Myanmar (since 2016).
Beneficiaries
Judicial development, and more broadly law and justice sector development towards robust rule of law, is integral
to the development of fair and just societies. The Federal Court collaborates with partner courts to build their
capacity to respond in a fair and just way to society as a whole. As such, investing in law and justice, and in
particular in judicial development, lays the foundation for fairness within society. Moreover, the MoU and other
engagements with foreign judiciaries can, in the Court’s experience, act as a “springboard” for wider
engagements between respective national legal professions. Society as a whole in those countries, including
individuals, groups, businesses and other entities, become the beneficiaries of the results. Moreover, these
benefits often flow beyond each country’s borders, particularly where law and justice investment occurs in
multiple countries across a region, thus may have both a regional and global impact.
Development Logic
The promotion of justice and fairness is an essential element of all development initiatives. It is the Court’s
experience that human wellbeing flourishes in communities where both users and potential court users have trust
and confidence in their courts. To achieve this, the Court’s development logic focuses on leadership, performance
and competence.
For justice services to be effective, they must be led to a consistently high standard, accessible, and deliver
procedural justice and substantive justice outcomes. To facilitate this outcome, courts must be effectively
governed and administered enabling them to be responsive to the needs of their users, fair in their assessment of
the law and claims, and efficient in disposing of cases before them. As such, all judicial and court officers must
perform their role competently and be equipped with the tools, capacity and resources to address their own
reform objectives, guided by visionary, skilled and determined leaders.
Partnerships with like-institutions allows for a top down/bottom up modality, ensuring strong leadership and
change management, alongside notions of access to justice and enabling citizens to realise their rights. The
Federal Court focuses on the outcomes of capacity building to emphasise the relationship of the courts with the
people/entities they serve and promotes sector-wide support - as just outcomes will only be as strong as the
weakest link in the chain. This necessitates court-to-court partnerships, complemented by partnerships between
other like entities. The Federal Court has seen great success being the overarching manager of multi-agency
justice reforms.
Australia’s aid policy should ensure that all stakeholders (both state and non-state) are aligned with and
committed to a strategic national justice development agenda which is aligned with human and civil rights norms
and contemporary practices, including the centrality of fairness. Local actors need to be empowered to address
capacity and institutional development needs locally. With divergent capacity across developing countries, this
will take time. But increased autonomy over, and responsibility for, local development will in time require less
external involvement. To achieve this, it is important that capacity is built around aspects of leadership and
foundational theoretical/practical competence in instituting reform and fairness. With this, local actors will be
empowered with the tools and capability to deliver justice to a high standard.
The development of justice and fairness is cross-sectoral and as such, networks, collaboration and cooperation
needs to be developed and nurtured to ensure consistent and efficient treatment of issues. This is fundamental to
developing appropriate and consistent responses across society as a whole. Collaboration is particularly important
in developing responses to thematic issues centred on human and civil rights, which includes fair and expedient
access to justice, equity and equality.
Technology can play a large role in the implementation of Australian foreign policy and the delivery of Australian
aid services. Emerging technologies provide the opportunity to re-think the modalities and methodologies used to
deliver support. Remote support has been an effective tool employed by the Federal Court in the design and
delivery of its initiatives. Alongside other development strategies, remote support has allowed the Federal Court
to extend its reach, providing ongoing assistance in countries in a cost-effective manner.
Outcomes and Sustainability
As noted above, the SDGs for the first time include targets relating to the law and justice sector, most notably
SDGs 11 and 16 which are respectively concerned with making human settlements safe, resilient and sustainable
and access to justice and effective, accountable and inclusive institutions.
Due to the complexities inherent in development, short term or piecemeal projects are ineffective in delivering
tangible and sustainable outcomes. Long term strategic plans need to be developed and delivered, which are
capable of evolving as capacity is built and mid-term goals are realised. Enabling the development of strategic
projects over the medium to long term (5-15 years) will allow for generational change, the growth of capacity and
the empowerment of actors to manage and guide their own development. Delivering support over longer
timeframes enables learning and behavioural change to be embedded and consequent beneficial changes within
society to be felt and measured. It also needs to be recognised that some projects will yield beneficial outcomes
which are either not readily measurable or which are measurable only well beyond the life of a particular project.
For example, behaviours in conformity with Latimer House principles may already be present but their resilience
may be fragile and the acceptance of the promoted value of adherence to them vindicated by events and
behaviours which occur many years after the life of a given project.
Cross-sectoral approaches are vital for equitable development, which is a present challenge for aid policy. In
respect of accountability and management, aid delivery has historically been focused and ‘siloed’. This can have
the effect of muting collaboration, or developing problem solving to fit into funding specificity. Greater flexibility
is needed to promote peer-to-peer engagement (in the context of the Federal Court, supporting ongoing court-tocourt relationships), to produce long term and sustainable results which respect contextual difference but are
based on many other similarities.
Conclusion
Committed to good governance, accessibility and the rule of law, the Federal Court aims to collaborate with
judiciaries around the world to be responsive to their populations. Collaboration with international organisations
promoting these ends is also regarded as important. The Court recognises the judicial system as a core foundation
of a just and equitable society, and sees the development of a responsive justice system as integral to other forms
of development. With the core objective of the Court’s approach to judicial development being fairness as both
an ideology and an outcome of justice service delivery, Australia’s engagement in global affairs and the delivery of
aid should ensure sufficient resources to enable the effective development of the law and justice sector as an
indivisible feature of its foreign policy. Investment in law and justice sectors abroad represents a tremendous
opportunity for Australia, both directly and indirectly, to impact positively on peace, security, prosperity, and
development both regionally and internationally.