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Bar Association responds to ‘unsophisticated’ analysis of judicial productivity
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Bar Association responds to ‘unsophisticated’ analysis of judicial productivity

The Australian Bar Association has hit back at “recent attacks” on judges presiding in the nation’s Federal Court, which it says is “flawed” and portrays the process of justice in terms that are “too simplistic”.

Last week, the Fairfax publication Australian Financial Review (AFR) published a ranking of Federal Court judges, purporting to outline a “huge variation” in the speed at which judgments are written in cases heard by single justices, using metrics such as the average days to write a judgment, length of judgments, words written per day and average paragraphs per day.

The AFR’s data was collated via a third-party, Scraping Solutions, which it said extracted information from 11,000 Federal Court single-judge decisions published online since 2009 and covered almost 100,000 items of data.

The ABA said it has the highest respect for the independence, integrity and impartiality of the judiciary across Australia, and “rejects” the methodology employed by AFR.

“The AFR methodology is flawed as, inter alia, it fails to take into account the varied character, complexity and nature of individual cases,” ABA said in a statement.

“In addition, the analysis is unsophisticated as it does not incorporate other significant elements to any assessment of an effective system of justice.”

ABA noted that it was unclear how the AFR’s data was compiled, and if it was “simply a result of comparing the last date on which the case was listed for hearing and the judgment date”.

That can be particularly misleading in large cases, it argued, as it is not uncommon in such cases for extensive written submissions to occur between the bench and the bar after the hearing, which are necessary for the purpose of delivering judgment, ABA posited.

“Whilst ‘speed of justice’ is important and not denied by either the courts or the ABA, it is merely one element to be considered,” it said.

“The ABA endorses the comments of former Chief Justice of New South Wales, James Spigelman AC QC, [that] ‘the most important aspects of the work of the courts are qualitative and cannot be measured, such as fairness, accessibility, openness, impartiality, legitimacy, participation, honesty and rationality’.”

ABA president Noel Hutley SC added: “It is the quality of a judgment that delivers justice to the parties and provides public confidence in a Court.”
“The jurisdiction of the Federal Court brings before its judges very complex matters in which time is often necessary to provide that quality of judgment,” he said.

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