Chapter 6
Alternative means of delivering justice
6.1
Term of reference (e) addresses ways in which people can access justice using
means other than legal representation and/or the judicial system.
6.2
This chapter discusses the following means raised in the inquiry:
-
early intervention and prevention;
-
alternative dispute resolution;
-
restorative justice;
-
justice reinvestment;
-
clinical legal education; and
-
Indigenous specific issues.
Early intervention and prevention
6.3
According to National Legal Aid (NLA):
[Early intervention sets] matters on appropriate, efficient,
and cost effective pathways through or away from the justice system.[1]
6.4
The Attorney‑General's Department (department) acknowledged that
such 'triage' could result in costs savings to the Australian justice system,
and enhanced access to justice for members of the Australian community. Its
evidence referred to in‑built 'triage' mechanisms in the Strategic
Framework for Access to Justice in the Federal Civil Justice System:
What we were trying to get to in the framework and over time
hoped to see implemented through the various reforms that government might
consider is a concept of triage embedded in the system itself: all players in
the system would have a responsibility—and, indeed, the opportunity—to work out
the best way to deal with an issue. Rather than accepting instructions to
initiate recovery action, we would like to see...a situation where parties and
their representatives think, ‘What’s the best way to resolve this issue?’[2]
6.5
The subject of early intervention and prevention elicited comment in
specific areas, including: the benefits of a holistic approach; and the value
of community legal education programs.
The benefits of a holistic approach
6.6
In evidence, the committee heard that the holistic approach, or co‑location
of legal aid service providers and non‑legal aid service providers, would
benefit those persons most likely to experience multifaceted and complex
problems (for example: the homeless; sole parents; persons suffering chronic
illness and disability; and Indigenous peoples).[3]
Those submissions also reflected on the deleterious effects of allowing people's
legal disputes to escalate.
6.7
The West Heidelberg Community Legal Service, for example, attested to a
strong link between anxiety and stress caused by legal problems, and emergent
or exacerbated health problems. It argued that the significant impact on a
person’s health enforces arguments in support of access to legal representation,
and a holistic approach to early intervention and prevention.[4]
6.8
Associate Professor Mary Anne Noone and Ms Kate Digney cited national
and international research evidencing the benefits of providing client‑focussed
holistic services. The research revealed that: there is a significant
association between a person's experience of a justiciable problem and their
health status; most people do not seek or receive legal advice for their
justiciable problems; non‑legal services are most often the first point
of contact; and people rarely seek assistance from more than one source for
each legal issue.[5]
6.9
The Women's Legal Service (SA) Inc. also supported addressing the root
causes of legal and non-legal problems. Its submission argued that such
resolution reduces clients' further involvement with the legal system, thereby
promoting costs savings throughout the judicial system, as well as directly
benefiting individuals on a personal level.[6]
6.10
Assoc. Prof. Noone & Ms Digney acknowledged the many challenges to
developing an integrated service delivery approach, and their submission called
for: appropriate support in policy development and resource allocation; a
shared purpose, high level of trust, good communication, leadership and mutual
responsibility at the organisational level; and integration of professional
practices.[7]
6.11
Central Queensland Community Legal Centre Inc., one of the holistic
models operating in Australia, shared this view, arguing that, in areas of high
disadvantage, community services need to employ a collaborative approach to
service delivery:
No individual service alone can target the multi-levelled
problems that exist for people who live in areas of high disadvantage. A
holistic approach between all services, both social and legal, and both
Commonwealth and State funded, needs to be established.[8]
6.12
Based on this evidence, the committee concludes that a holistic
approach to the provision of legal and related services might well be a sound,
long‑term approach to helping disadvantaged Australians resolve issues.
The committee commends centres such as the West Heidelberg Community Legal
Services for their client‑focussed endeavours.
6.13
Evidence addressing term of reference (e) supported a holistic approach
to early intervention and prevention as a means of obtaining justice.
The value of community legal
education programs
6.14
Another means of obtaining justice without involving the judicial system
is community legal education, which aims to inform people of their legal
rights, responsibilities and options prior to or at the outset of any legal
problem. These programs intend to not only prevent legal disputes but also
assist in the early resolution of existing legal disputes.
6.15
Both the Law Council of Australia (Law Council) and the Law Society of
NSW supported an inter-related topic, early issues identification, with the
latter submitting that this could better inform strategy development in the
legal aid system:
A system of legal assistance which includes improved support
for those who need a lawyer to assess their matter at an early stage would
allow clients to make an informed decision on the merits of proceeding to court
or exploring other dispute-resolution avenues. In turn, they would not be
taking up valuable court resources on matters which have little chance of
successful litigation.[9]
6.16
Legal Aid Commissions (LACs) and Community Legal Centres (CLCs) are at
the forefront of providing community legal education programs. Programs are
also delivered by legal professional associations and organisations such as the
Law and Justice Foundation NSW.
6.17
The West Heidelberg Community Legal Service submitted that community
legal education is critical to informing people about how they can better
navigate or understand a complicated legal system, and should be delivered on
an on‑going basis and within a community development framework.[10]
6.18
The importance of delivering community legal education and legal
resources in an appropriate form (for example, in plain English; a variety of
languages; pictorially; etc.) was also drawn to the committee's attention.[11]
Alternative dispute resolution
6.19
In recent years, there has been a shift toward recognising alternatives
to litigation, including alternative dispute resolution (ADR) as a means of
delivering justice.
6.20
ADR is the resolution of disputes by an impartial third party independent
of judicial determination. The main types of ADR are mediation, conciliation,
arbitration and expert referral. ADR can occur by way of court order, or
encouragement, and by choice, and is delivered through one of three mediums: a
private mediator or arbitrator; a court‑authorised scheme; or through
community‑based services.
6.21
Legal professional associations also provide avenues for legal
practitioners to deliver or access ADR services. The Law Society of NSW, for
example, offers: accreditation through the Law Society Mediation Program;
access to experienced commercial arbitrators; nominations to Supreme, District
and Local Court arbitration panels; and a low‑cost Early Neutral Evaluation
Service.
6.22
For some people, ADR is an attractive option for the resolution of legal
disputes, and in its submission, the Australian Lawyers Alliance described the benefits
of ADR as follows:
-
it is more cost effective for parties;
-
it provides a more flexible forum for people to express their
concerns and grievances;
-
parties are able to tailor the resolution of their issue to their
individual circumstances;
-
alternative dispute resolution proceedings can remain
confidential;
-
other parties can be present or participate, if required; and
-
it can refine issues in dispute.[12]
6.23
In Western Australia, the Industrial Relations Commission offers a voluntary,
free mediation service for the resolution of employment‑related disputes by
an Industrial Relations Commissioner. The Employment Law Centre of WA (Inc.) cited
this service as an example of a successful ADR scheme which enhances access to
justice via an alternative means:
The WAIRC mediation service is ideal because it offers the
parties an informal forum to discuss their dispute with the assistance of an
independent mediator with specialist skills in mediation as well as legal
expertise in employment law. And as there is no charge to the service, it is a
service which is accessible to anyone regardless of their financial means.[13]
6.24
There are instances when ADR is not appropriate, for example: in situations
where there has been domestic violence and/or family violence; situations in
which there is a significant power imbalance between the parties (such as franchising
or securities matters); where conflict between parties is entrenched; or where
the issues requiring resolution are highly technical and complex.[14]
6.25
For this inquiry, submissions focused on court‑facilitated ADR. In
Australia, ADR has been used by courts as a case management tool where it plays
an important role in reducing the length and complexity of litigation by
narrowing the issues in dispute, and improving the efficiency of the courts.[15]
6.26
The Law Council supported the development of court processes which
enhance the use of ADR, recommending that ADR options: be presented in a way
which maximises their efficient and effective use; be accompanied by clear guidelines
outlining the advantages and disadvantages of each option, as well as the types
of disputes to which each option is most suited; and identify clearly categories
of matters which may not be suitable to ADR.
6.27
However, the Law Council cautioned that courts' referral criteria and
methods of referral are 'crucial to the effective provision of ADR services',
and at present, require significant development:
The potential exists for the future implementation of
streamlined processes, designed to direct disputes through the appropriate
‘door’ - the most appropriate form of ADR - from the time of filing with the
court or earlier.[16]
6.28
Dr Andrew Cannon, a court officer and legal academic, favoured also a
diverse system of ADR, but warned that it should not be an obstacle to
accessing the courts and therefore a compulsory precondition to litigation (as
is the case in some family law matters):
The control that ADR gives people over their own destiny, its
potential to repair damaged relationships and the ability to manage sensitive
matters in private all offer incentives and good reasons for using ADR rather
than courts, without the necessity of it being compulsory.[17]
6.29
Chapter 5 refers to current legislative proposals to strengthen and
clarify the case management powers of the Federal Court of Australia (Federal
Court), including granting the court discretion to refer civil matters to ADR
and the power to penalise parties who unreasonably refuse to participate in ADR
opportunities.[18]
The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 is
currently awaiting Royal Assent.
6.30
Some state/territory legal professional associations promote the use of
ADR as an alternative means of obtaining justice, requiring their members to
advise clients about ADR options.[19]
The Law Council submitted that all Australian jurisdictions should consider
similar obligations for legal practitioners (both barristers and solicitors).[20]
6.31
In early 2009, the Australian Government publicly recognised that access
to justice is an important issue, in which ADR plays a key role.[21]
It is currently awaiting results from a National Alternative Dispute Resolution
Advisory Council (NADRAC) inquiry, whose terms of reference included:
-
whether mandatory ADR should be introduced;
-
changes to cost structures to provide incentives to use ADR or
remove barriers to the use of ADR;
-
changes to civil procedures to provide incentives to use ADR or
remove barriers to the use of ADR;
-
the provision and quality of ADR services, and whether they
should be provided inside or outside the courts or both; and
-
the use of techniques derived from ADR to enhance adjudication in
the courts, including judicial dispute resolution.[22]
6.32
NADRAC was due to report on 30 September 2009, and the committee awaits
its findings and recommendations with interest.
6.33
In relation to the evidence raised in the inquiry, the committee accepts
that ADR is a valuable and alternative means of delivering justice, but reiterates
its previous findings that ADR is not an appropriate means of delivering
justice in certain matters, including those involving victims of domestic
violence.
6.34
The committee understands that ADR is an established process in some
court practices and procedures, but is not fully developed in all Australian
jurisdictions. The committee encourages all courts to consider, introduce and
expand ADR options with clear criteria, guidelines and methods of referral.
6.35
The committee endorses efforts to enhance the use of ADR as an
alternative means of delivering justice, but refrains from pre-empting the
findings and recommendations of the NADRAC inquiry.
Restorative justice
6.36
Restorative justice refers to a range of justice practices which
actively involve offenders, victims and the community in the criminal justice
process. The aim of restorative justice programs is to repair the harm caused
by crime, divert offenders from the court process, and reduce recidivism.
6.37
Restorative justice programs are available in situations where an
accused pleads guilty to a criminal offence and the victim(s) of the crime
agrees to participate in the program. It is designed to create a forum for an
accused to articulate his/her remorse and, as an alternative to victim impact
statements, is a means by which a victim can express the impact that the crime
has had on his/her life.[23]
6.38
Submissions which addressed this topic argued that restorative justice
programs are an alternative, and more capable, means of delivering justice than
the traditional criminal justice system.
6.39
Justice Action testified that restorative justice is 'a winner',
enabling matters to be handled within the community and independent of the
court process.[24]
The Australian Lawyers Alliance agreed that greater consideration must be given
to a criminal justice system which focuses on better outcomes for accused,
victims and the community: 'Restorative justice is a core feature of any such
approach.'[25]
6.40
Witnesses indicated to the committee that restorative justice programs
would greatly benefit Indigenous people, who, as mentioned in Chapter 8, are
vastly over‑represented in the criminal justice system. In Western
Australia, for example, 41 per cent of the adult prison population and 75.5 per
cent of youth held in custody are Indigenous people.
6.41
At the Perth public hearing, Dr Dorothy Goulding and Dr Brian Steels
equated prison to a 'rite of passage' for young Indigenous people, stating that
restorative justice programs should be more widely used in Australia. They did
not consider restorative justice to be an 'easier' option:
It is much easier for someone to go into court, plead guilty
and get it over and done with than it is for them to face the person that they
harmed. They cannot then depersonalise their crime...It is much tougher and much
more effective to have to make an apology or reparation in front of people who
mean something to you and with them you have a sense of belonging. So it is not
a soft option but, in fact, a much more effective option.[26]
6.42
The Centre for Restorative Justice agreed that there is a need to
examine different and more effective processes for dealing with crime and
criminal behaviour. The centre argued that restorative justice, comprising re‑integrative
shaming (shaming carried out within a continuum of respect and support) and
restorative processes (which focus primarily on well being) might be an
additional means of delivering justice. Its submission presented what it
suggested would be the features of an appropriate and successful restorative
justice model:
-
programs should run alongside the criminal justice system;
-
involvement and referral should be encouraged through victims,
offenders, courts, police and other interested agencies;
-
involvement should be voluntary and while encouraged, there
should be no coercion or plea bargaining;
-
involvement would not attract mandatory reductions in sentence
etc;
-
all ‘agreements’ reached could be submitted to court where they
can be ordered accordingly;
-
the state/territory would ensure that follow through as per the 'agreements'
is encouraged and supported; and
-
all restorative practices should be facilitated by independent
neutral personnel.[27]
6.43
Internationally, some countries have begun applying restorative justice
principles to not only juvenile but also adult criminal matters, including in
the context of serious crimes. In the United Kingdom, restorative justice
programs have been found to: reduce the frequency of re‑conviction; save
money by lowering the rates of offending; and satisfy parties involved in
restorative justice processes. These results have reportedly been mirrored in
Canada.[28]
6.44
At present, the Australian Government funds restorative justice programs
in the context of juvenile justice, Indigenous justice and family law through
the Prevention, Diversion, Rehabilitation and Restorative Justice Program, and
through the Aboriginal and Torres Strait Islander Legal Services.[29]
6.45
In light of international experience, the Australian Lawyers Alliance
submitted that restorative justice programs should be more widely available in
Australia. At the West Heidelberg Community Legal Service, the use of
restorative justice approaches to resolve or avert disputes is being considered,
but the service agrees that restorative justice principles should be applied
generally to: youth crime; issues where criminal consequences are not the only
solution; educational issues around exclusion and suspension; and use of public
space and housing issues.[30]
6.46
The committee considers that the concept of restorative justice
bears closer investigation. If restorative justice programs are as cost‑effective
and successful as suggested, both in this inquiry and by international
experience, then they could form an invaluable and appropriately focussed means
of delivering justice.
Recommendation 20
6.47
The committee recommends that the Australian Government consider funding
a number of restorative justice pilot programs in areas where there is an over‑representation
of minor offenders in the criminal justice system.
Justice reinvestment
6.48
Justice reinvestment is a new concept in the Australian Justice system.
The Australian Human Rights Commission (AHRC) explained the concept and its
brief history as follows:
The concept of justice reinvestment originated in the United States.
It was initially developed by the Open Society Institute in 2003 but has since
been taken up in 10 states in the US (Arizona, Oregon, Connecticut, Kansas,
Michigan, Nevada, Pennsylvania, Rhode Island, Texas, Vermont and Wisconsin).
Justice reinvestment is a criminal justice policy approach
that diverts a portion of the funds spent on imprisonment to the local
communities where there is a high concentration of offenders. The money that
would have been spent on imprisonment is reinvested in programs and services
that address the underlying causes of crime in these communities. It is not
just about tinkering around the edges of the justice system – it is about
trying to prevent people from getting there in the first place.
Justice reinvestment retains detention as a measure of last
resort for dangerous and serious offenders, but actively shifts the culture
away from imprisonment.[31]
6.49
Although justice reinvestment has undergone only limited trialling in
the United States, the AHRC proposed it as a possible solution to the over‑representation
of Indigenous people in the Australian criminal justice system. In addition to
costs savings elsewhere in the system, the AHRC submitted that the appeal of
justice reinvestment lies in its efficacy:
In Kansas where justice reinvestment has been implemented,
there has been a 7.5% reduction in their prison population; parole revocation
is down by 48%; and the reconviction rate for parolees has dropped by 35%....These
changes have prevented Kansas from the need to build a new prison and have
saved that state about $80 million over a five‑year period.[32]
6.50
At the Canberra public hearing, the AHRC told the committee:
We need to look to new ways to address longstanding and
intransigent problems that we simply have not made any progress on. It is quite
clear: Indigenous overrepresentation has been a matter of serious concern for
20 or 30 years and the rates not going down; they are continually increasing or
have stabilised and plateaued. We cannot continue to do the same thing and
expect we are going to get a different result. We are clearly not going to.
This is a completely different take on how you might approach these issues and
it is something that could be given priority consideration by the Commonwealth,
whether that is working through the Standing Committee of Attorneys-General,
whether it is separately through looking at opportunities for priority
communities through the Northern Territory intervention, whether it is through
other processes that may exist.[33]
6.51
In response to questions from the committee, the AHRC argued that
sufficient data exists to consider trialling justice reinvestment in Australia:
Preliminary analysis of information supplied for the Social
Justice Report by the state and territory departments responsible for
corrections and juvenile justice identifies a number of communities with high
concentrations of Indigenous incarceration. These communities are in urban and
remote locations and include places like Blacktown, Dubbo, Port Augusta,
Broome, Halls Creek, Darwin and Alice Springs. This data is very preliminary
but it does suggest that there are Indigenous communities that could benefit
from justice reinvestment strategies.[34]
6.52
However, additional mapping would be required, and given that over‑representation
of Indigenous peoples in the criminal justice system is a federal, state and
territory issue, the AHRC called for a collaborative approach between
governments:
It is going to be a suite of measures. Once you get into
preventative processes and other things, sometimes you are going to slip into
programs that are traditionally funded through the federal government as opposed
to services provided by the state, but clearly one can impact on the other. It
is probably ultimately more of a state responsibility, but it is also probably
something where some sort of trialling could be done in a collaborative way.[35]
6.53
The AHRC also suggested that matters could immediately be improved if
states/territories were to review policies and laws which have the effect of
increasing imprisonment. The AHRC specifically mentioned the new mandatory
sentencing laws in Western Australia, and the NSW Law Society commented also on
inappropriate sentencing in relation to minor traffic offences:
In NSW a person's licence is often cancelled for fine
default. The licence expires and is not renewed and the person is subsequently
charged for driving whilst unlicensed. A person convicted for a second offence
of driving without a licence is automatically disqualified for a three year
mandatory period. Due to the long period of disqualification, this often
snowballs into a driving whilst disqualified conviction and can result in a
prison term.[36]
6.54
In response to questions from the committee, the department indicated
its hope that the states/territories would recognise 'the impact of changes in
the state criminal law which impact disproportionately on Indigenous people',
but stated that it is fundamentally an issue for the states and territories.
The department was not aware of any federal intentions regarding justice
reinvestment.[37]
6.55
The committee is persuaded that justice reinvestment is worth trialling
in the Australian context after completion of further mapping. The committee
notes that Recommendation 1 should provide the necessary information to
enable a targeted justice reinvestment pilot program.
Recommendation 21
6.56
In conjunction with Recommendation 1, the committee recommends that the
federal, state and territory governments recognise the potential benefits of
justice reinvestment, and develop and fund a justice reinvestment pilot program
for the criminal justice system.
6.57
The committee also urges state and territory government to review laws
which have the effect of increasing rates of incarceration with a view to
ensuring that relatively minor offences do not result in custodial sentences.
The committee considers that this would result in decreased need for funding of
gaols and those funds could then be applied toward justice reinvestment
programs which would, in turn, reduce involvement with the criminal justice
system. The committee encourages state and territory governments to recognise
this causal link and take steps to ameliorate the problem at its root cause.
Clinical legal education
6.58
Clinical legal education is a legal practice‑based method of legal
education. It is a form of experiential learning where students are placed,
under supervision, in the role of a solicitor in legal practice or a solicitor in
a policy environment. Students are thereby provided with the opportunity to
link theory with practice, with a key feature being the provision of legal
assistance to disadvantaged people within the community.
6.59
Submissions from CLCs described various clinical legal education
programs, and highlighted these programs' role in delivering access to justice.
The SCALES Community Legal Centre added that clinical legal education imbues students
with a sense of social responsibility and a life‑long commitment to pro
bono and social justice work:
However, these longer term benefits of our clinical program
are only possible if it is properly resourced and able to provide support and
parallel pedagogical guidance for our students. Clinical programs need the support
of both Universities and government to ensure adequate funding and realistic
benchmarks, or they fall prey to the demands of casework that can swamp and
compromise clinical supervision. They should not be seen as a cheaper form of
legal service delivery.[38]
6.60
The short‑ and long‑term objectives of clinical legal
education featured also in the submission from the West Heidelberg Community
Legal Service, which similarly provides clinical legal education in conjunction
with a local law school.[39]
Indigenous specific issues
6.61
As discussed in Chapter 8, Indigenous people are a highly disadvantaged
group within the Australian community, with an inclination
not to access the mainstream legal system due to previous experiences of racism
and discrimination.[40]
6.62
Under term of reference (e), submissions raised family law proceedings
as a problematic yet alternative means to accessing justice. These submissions
argued that Indigenous people have difficulty accessing the family law courts.
6.63
In 2001, the Family Law Pathways Advisory Group reported that 'Indigenous
families encounter particular barriers' that impede their ability 'to access
and benefit from the family law system.'[41]
Its key recommendations included the expansion of the FCA's existing programs
for Indigenous people, and reform of the Family Law Act 1975 (Cth) to
ensure that the court was more able to respond to the needs of Indigenous
families.[42]
6.64
The Australian Government responded to these recommendations by:
-
amending the Family Law Act 1975 (Cth) to place a much stronger
emphasis on the rights of Indigenous children to be aware of and participate in
their culture and heritage; and
-
establishing a national network of family relationship centres to
provide outreach services to Indigenous communities through the employment of
Indigenous advisors.
6.65
According to the Family Court of Australia (FCA) and Federal Magistrates
Court (FMC):
These initiatives effectively provide 'a front door' through
which Indigenous families enter the family law system and eventually find their
way to the Family Law Courts.[43]
6.66
However, the Aboriginal Family Violence Prevention & Legal Service
Victoria continued to express dissatisfaction with Indigenous peoples' entry
into the family law system, a view with which the family law courts agreed.[44]
The service suggested additional measures to improve access to the family law
system, including making Indigenous legal services the entry point.[45]
6.67
Furthermore, the Aboriginal Family Violence Prevention & Legal
Service Victoria questioned whether recent changes to the family law system
(emphasising family dispute resolution) would create barriers to Indigenous
women accessing legal assistance and support.
6.68
In early 2006, NADRAC published a report, Indigenous Dispute Resolution
and Conflict Management, examining the effectiveness of Indigenous dispute
resolution and conflict management services. Among its findings was that evaluation
methods and performance indicators must consider the complex and overlapping
nature of many Indigenous disputes, and the fact that conventional methods may
not provide a reliable or valid picture of effectiveness.[46]
6.69
In response to these findings, the Federal Court, in collaboration with NADRAC
and the Australian Institute of Aboriginal and Torres Strait Islander Studies, conducted
a scoping study to determine how case study research could be used to identify
examples of best practice in Indigenous dispute resolution and conflict
management.[47]
The department advised that the Case Study Project is currently being
considered by NADRAC.[48]
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