The Remaking of the Courts: Less-Adversarial Practice and the Constitutional Role of the Judiciary in Australia centres on the changing nature of courts within the Australian constitutional context. In essence, the monograph explores the degree to which less-adversarial innovations and the remodelling of the judicial role can be accommodated within Australia’s constitutional framework.
The work draws upon comparative principles, separation of powers, jurisprudence and the theoretical perspectives of constitutionalism and neo-institutionalism. By examining Chapter III of the Commonwealth Constitution, and applying Chapter III approaches to less-adversarial case-studies traversing state and federal fields, the book argues that less-adversarial judicial practices can be broadly accommodated by the Australian constitutional framework. However, the book asserts that the clarity and suitability of the Chapter III constitutional approaches employed would be significantly improved by the adoption of a ‘contextual incompatibility’ methodology which would protect the constitutional role of the courts while not forestalling constitutionally compatible reform.
Foreword by Emeritus Professor Tony Blackshield AO
Preface and Acknowledgements
Table of Cases
Table of Statutes
1 The Context of Judicial Change and Less-Adversarial Practice
1.1 Less-Adversarial Reform
1.2 The Catalysts for Less-Adversarial Processes
2 Neo-Institutionalism, Constitutionalism and the Nature of Institutional Change
2.1 Neo-Institutionalism and Change
2.2 Less-Adversarial Change and Neo-Institutionalism
2.3 Less-Adversarial Change and Constitutional Legitimacy
3 Constitutional Foundations and Chapter III Precepts
3.1 Federal Constitutional Principles
3.2 State Constitutional Precepts
4 Judicial Case Management and the Commonwealth Constitution
4.1 The Rise of the ‘Sophisticated Art’ of Case Management
4.2 The Case Management Tightrope
4.3 Judicial Case Management in the Federal Sphere
4.4 Federal Constitutional Landscape and Judicial Case Management
4.5 Refocusing the Federal Constitutional Approach?
5 The Constitutionality of Judicial Mediation
5.1 Judicial Mediation on the Agenda
5.2 What does Judicial Mediation Mean?
5.3 Judicial Mediation and the Constitutional Law Paradigm
5.4 Limitations and Safeguards for Judicial Mediation – A Constitutional Necessity?
6 Australian Drug Courts and their Constitutional Treatment
6.1 The Drug Court Setting
6.2 Drug Courts and the State Constitutional Context
6.3 Difficulties with the State Constitutional Approach
7 Constitutional Reform
7.1 The Problem with Boilermakers’
7.2 Why It Might ‘Not Matter Much Any More’
7.3 Conventional Scope of Judicial Power
8 Contextual Incompatibility – A New Approach
8.2 Contextual Incompatibility – The Reformulation
8.3 Constitutional Acceptability of Contextual Incompatibility?
8.4 Appraising a Contextual Incompatibility Approach
Less-Adversarial Practice and the Constitutional Future of Contextual Incompatibility
Less-Adversarial Justice Select Bibliography – Extended Bibliography
[Sarah Murray] focuses on the challenges of accommodating non-adversarial mechanisms within Australia’s constitutional framework. She poses a question that should concern anybody interested in the administration of justice in Australia: how can courts adopt innovative practices without losing their constitutional identity?
Anna Olijnyk, UNSW Law Journal, October 2015
As the title indicates, this book examines the extent to which the Australian constitution, in particular Chapter III of the constitution, can accommodate less adversarial practice by the judiciary. … the author has written an interesting and stimulating monograph on a topic that will only rise in prominence.
David Kim, InPrint, Law Institute Journal Victoria, October 2014
This is a useful book for all lawyers, not the least because in the context of considering judicial initiatives towards less-adversarial processes the author clearly and comprehensively examines the Federal and State constitutional precepts affecting the courts. … the clarity given to abstract constitutional principles by their application to real or proposed examples of less-adversarial curial reforms makes this book a valuable resource for practitioners, as well as academics, more so as it is current as at 13 June 2013. The author has achieved her aim of stimulating discussion and explores whether, and to what extent, there is room in the Constitution for judicial and curial change to accommodate a less-adversarial approach.
Garry McGrath, Australian Bar Review, July 2014