Protecting the rights of trafficked women and children and those forced into prostitution through advocacy and non-adversarial justice

Andrea Tokaji1

1 Fighting for International Justice Foundation

 This paper discusses the current gap in legislation and policy in relation to the trafficking of women and forced prostitution in Australia. International best practice models will be considered through a human rights framework and the proposal for a Women and Children’s Advocacy Centre will be outlined. It will be argued that an Advocacy Centre should address not only the therapeutic needs of survivors, but also provide restorative justice and appropriate dispute resolution processes for victims, and assistance with legal aid. In addition, an Advocacy Centre would operate as a exit program for women in the sex trade. Services provided in such a model would include mediation, dispute resolution and juvenile restorative processes for both survivors and perpetrators of gender based violent crimes – especially rape, sexual assault and sexual abuse – within a therapeutic and supportive case management context to enable a multi-disciplinary approach to the survivor’s rehabilitation and reintegration and the perpetrator’s rehabilitation through cognitive behavioural education diversion. This approach is a theoretical work in progress, and will require all relevant stakeholders support and contributions.

Promoting More Therapeutic Forms of Alternative Dispute Resolution (ADR)

Tania Sourdin1

1 University of Newcastle Law School

ADR processes take many forms, they can be facilitative, advisory or adjudicative or even a blend of two or more forms. Some mimic more traditional court litigation processes and some focus on transformation and attitudinal or behavioural change. The range of dispute resolution options that are available and supported within the justice system can be linked to budgetary factors, system objectives and cultural features that and may not involve self determination or empowerment. This session explores the current ADR landscape in the context of the current definition of ‘justice’ in a civil setting and focusses on what might happen if social wellbeing or wellness was an objective of the civil justice system.

Comparing Mental Health Courts and involuntary Civil Commitment Courts

Professor Michael Perlin1

1 New York Law School

There is a developing robust literature about mental health courts (MHCrts) in the United States, and researchers have begun to focus on a broad range of empirical issues, such as the extent to which defendants are competent to waive their trial rights in such settings, the significance of diversion, etc. Also, advocates and other scholars have engaged in vigorous debates about the value of these courts, and the extent to which they do or do not preserve and protect due process and civil liberties values. Finally, those who locate themselves in the therapeutic jurisprudence (TJ) movement write frequently in support of them – and other problem-solving courts in general – as the best way to optimize TJ values in the court process. But there has been virtually nothing written from the perspective of what college professors always called “Compare and contrast.”

How are these MHCrts like or unlike the involuntary civil commitment courts which, for more than 40 years have adjudicated the question of whether individuals should or should not be committed involuntarily to inpatient psychiatric hospitals and which have been characterized as “greased runways” to such commitment? In the past, I have written about how, in these courses, adjudication takes place in “pitch darkness” in cases presided over by disinterested judges in which patients were often represented by even less-interested lawyers. We are still confronted with studies from the 1970s that showed that pro se patients had a better chance of release in some states than did those with assigned counsel. The disconnect between the prevailing “takes” on MHCrts and traditional civil commitment courts is profound. Yet, there has been virtually no commentary in the literature on that disconnect.

In this paper, I “compare and contrast” the two, and demonstrate that the reasons that the disconnect is so total is that the courts come from utterly dissonant perspectives. MHCrts – at least the successful ones – began with the conscious goal of promoting TJ in a way that did not impinge on civil liberties; traditional civil commitment courts grudgingly gave lip service to those Supreme Court cases that established baseline due process procedures in commitment cases, and generally have shown little interest in the nuances and complexities of the cases that are being decided, a lack of interest often reflected in the work done by lawyers in those cases. I conclude that attorneys must embrace the principles and tenets of therapeutic jurisprudence as a means of best ensuring the dignity of their clients and of maximizing the likelihood that voice, validation and voluntariness – the basic precepts of TJ – will be enhanced, and further believe that a rejection of the traditional civil commitment court model and an embrace of the modern mental health court model is the single best way that this dignity can be provided to litigants in these courts.

Court-referred ADR: perceptions of members of the judiciary in Australia

Dr Nicky McWilliam1

Visiting research fellow, faculty of law UTS, Sydney

A recent study employed qualitative and quantitative methods in examining attitudes of 104 Australian judges across five levels of the Australian court system with respect to court referred alternative dispute resolution (CADR) . CADR was defined as a broad generic term encompassing referral to well-known ADR processes such as mediation, facilitation and negotiation and also processes including judicial case management, specialist opinions and non-adversarial processes born of disciplines including restorative justice, comprehensive law, creative problem solving, diversion, and therapeutic jurisprudence. CADR can occur because of a judge-led discretion or initiative, which may be pursuant to legislation or court-based procedure or practice, with or without the parties’ consent or as a request or application by parties or their representatives.

Judicial attitudes were explored in relation to areas including: engagement with ADR; impact of CADR on court proceedings, work of the court, judicial workload, judicial culture and judicial satisfaction; and if CADR requires judges to understand ADR and requires considerations of needs and interests of the parties appearing before them.  The findings provide some valuable information about how judges perceive CADR and the extent to which its practices influence the way in which judges conduct their matters and carry out their roles.

Examining Magistrate Perceptions and Use of Judicial Supervision

Magistrate Pauline Spencer1, Dr Benjamin Spivak2, Professor James Ogloff3, Dr Stephane Shepherd, Dr Diane Sivasubramaniam

1 Dandenong Magistrate’s Court, Dandenong, Victoria, 3175

2 Centre for Forensic Behavioural Sciences, Swinburne University of Technology and Forensicare, 505 Hoddle Street, Clifton Hill, 3068, bspivak@swin.edu.au

3 Centre for Forensic Behavioural Sciences, Swinburne University of Technology and Forensicare, 505 Hoddle Street, Clifton Hill, 3068, jogloff@swin.edu.au

Victorian sentencing law offers a number of mechanisms for magistrates to engage in therapeutic practices when dealing with offenders including deferral of sentences and judicial monitoring as part of a Community Corrections Order. Judicial monitoring allows for an accused/offender to appear before the same magistrate on multiple occasions to encourage and monitor engagement in rehabilitation programs. Supporters suggest that judicial supervision supports the aims of rehabilitation and treatment by motivating behavioural change, keeping offenders accountable, and allowing magistrates to tailor sentencing to an offender’s changing situation.

While Victoria permits judicial supervision, the relevant law allows for extensive magisterial discretion in determining when the mechanism should be used (i.e. what are the characteristics of accused/offenders that are best targeted for judicial supervision), how it should be employed in practice, what techniques should be used in supervision hearings, how often review hearings take place, and what specific goals supervision should be aiming to meet. Furthermore, these aspects of judicial supervision have largely been ignored by researchers meaning that there is a lack of information concerning how supervision is utilised and perceived by magistrates and whether magistrates face any barriers in employing judicial supervision in particular circumstances.

In 2016, the Centre for Forensic Behavioural Sciences was awarded a Victorian Legal Services Board grant to undertake a research project aimed at addressing the lack of information around magistrates’ use and perceptions of judicial supervision. The research seeks to examine who is being targeted by judicial supervision and why, what types of supervision are being used (e.g. pre-plea, post plea, post sentence), what, if any, barriers to judicial supervision are perceived by magistrates, and what techniques are being used by magistrates in court review hearings when undertaking supervision.

This paper will outline the background to the project, the methodologies utilised and the anticipated outcomes of the study.

Biography:

Magistrate Pauline Spencer sits at Dandenong Magistrates’ Court, Victoria, Australia.  She was appointed to the bench in 2006.  Prior to her appointment she worked as a private lawyer and then with community legal centres as a lawyer and in a policy role.  During this time she worked with people with addictions and wrote and spoke about the need for the justice system to find better ways of dealing with people who were committing offences as a result of addiction.  Since being appointed Magistrate Spencer has developed her interest in therapeutic jurisprudence and in particular its application in busy mainstream court setting.

Dr Benjamin Spivak is a Research Fellow at the Centre for Forensic Behavioural Science, Swinburne University of Technology. His research interests relate to legal decision-making and risk assessment.

Finding the right balance – The Singapore Community Justice and Tribunal Division Experience

Miss Li Tien Wong

District Judge, State Courts Singapore

The paper describes Community Justice and Tribunal Division (CJTD) experience in developing a community justice strategy encompassing both adversarial and non-adversarial justice tools in resolving disputes, and working with stakeholders to build a cohesive society.

The CJTD is the newest justice division in the Singapore State Courts and oversees both community and relationship cases. A unique feature of the CJTD is that the judges will deal with both civil and criminal process components unlike other justice divisions.

The CJTD consists of the Small Claims Tribunals (SCT), the Community Disputes Resolution Tribunals (CDRT) and also handles applications under the Protection from Harassment Act (POHA).

The SCT provides a speedy and inexpensive process to handle small claims arising from disputes in contract for goods or services and residential tenancies. The claim will proceed for adjudication if there is no settlement by the SCT mediators. The SCT is not bound by strict rules of evidence or by normal court procedures, and there is no legal representation to keep costs to a minimum.

The CDRT is the last resort to deal with intractable neighbourly dispute cases. Mediation plays a critical role, and the CDRT may direct litigants to undergo counselling or mediation. The CDRT may also make special directions or impose a compliance bond or impose criminal sanctions or exclusion from residence orders.

The CJTD judges hear POHA applications under the civil court process and may grant a protection order to protect persons against harassment and unlawful stalking. There is also a simple self-help process for a subject of a falsehood to apply for the falsehood to be set right and the true facts brought out clearly.

The paper will also examine how CJTD has established working relationships with community stakeholders to offer therapeutic counselling services to address the underlying issues affecting the litigants.

Biography:

Ow Yong Tuck Leong is a District Judge in the Community Justice and Tribunals Division of the State Courts. Mr Ow Yong graduated from the National University of Singapore in 1998 and was admitted as an advocate and solicitor of the Supreme Court in 1999. He joined the Singapore Legal Service in 2000 and has served in the Registry of Companies and Businesses, the Attorney-General’s Chamber and the Competition Commission of Singapore before his appointment in the State Courts in 2011.

Judicial monitoring – panel discussion.

Deputy Chief Magistrate Jelena Popovic1,

1 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  jp@magistratescourt.vic.gov.au

Judicial monitoring is a key feature of many therapeutic jurisprudence (TJ) initiatives.  It involves active oversight of a case by a judicial officer, usually including multiple court appearances of an accused person or offender before the same judicial officer.

The Magistrates’ Court of Victoria (MCV) operates a range of specialist courts and lists. It also utilises the Court Integrated Services Program (CISP) in mainstream court. Magistrates also now have the option of judicially monitoring offenders sentenced to a community corrections order.

Led by Deputy Chief Magistrate Jelena Popovic, this presentation by a panel of Victorian magistrates who sit in specialist court lists will discuss the different forms of judicial monitoring that are practiced in Victoria.

Biography:

Jelena is a Victorian Deputy Chief Magistrate of 27 years standing who has a keen interest in solution focussed judging and is the Supervising Magistrate of the Koori Courts.

Specialist Family Violence Courts – developing best practice.

Magistrate Kate Hawkins1, Lisa Eldridge2, Robert Challis3

1 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  kih@magistratescourt.vic.gov.au 

2 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Lisa.Eldridge@magistratescourt.vic.gov.au

3 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Robert.Challis@magistratescourt.vic.gov.au

The increase in demand and complexities of family violence matters is a growing challenge for courts.  In Victoria, a Royal Commission into family violence found that a specialist and therapeutic jurisdiction is the recommended approach for courts to ensure that victims are safe and perpetrators are kept in view.

The Victorian Government has committed to implementing the 227 recommendations of the Royal Commission and released a 10 year plan (Ending Family Violence: Victoria’s Plan for Change) that incorporates specialist family violence courts in its vision.

This paper outlines the key features of the proposed Victorian specialist family violence courts model and how it sits within the whole of government response to family violence.

Biography

Magistrate Kate Hawkins was appointed to the Magistrates’ Court of Victoria in 2001.

Since July 2011 Magistrate Hawkins has been the Co-Supervising Magistrate for Family Violence and Family Law, together with Deputy Chief Magistrate Felicity Broughton. She provides judicial leadership of the Court’s implementation of the broad ranging recommendations made by the Victorian Royal Commission into Family Violence. This includes rolling out specialist family violence courts statewide across Victoria.

In 2016 she facilitated a roundtable dedicated to reducing the risk to families affected by family violence navigating the court system at the COAG National Summit in Brisbane.

Prior to appointment Magistrate Hawkins practiced as a solicitor and was a partner at a major Melbourne law firm.

 

 

The Assessment and Referral Court (ARC) List & Borderline Personality Disorder (BPD) – are they compatible?

Glenn Rutter1, Brianna Chesser2, Glen Hardy3

1 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Glenn.Rutter@courts.vic.gov.au

2 Australian Catholic University, 115 Victoria Pde, Fitzroy, Vic, 3065.  Brianna.Chesser@acu.edu.au

3 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Glen.Hardy@courts.vic.gov.au mailto:Glenn.Rutter@courts.vic.gov.au

There is evidence that individuals who meet the criteria for a diagnosis of Borderline Personality Disorder (BPD) are over-represented in the criminal justice system. However, the behaviours and patterns of relating associated with BPD pose particular challenges for therapeutic jurisprudence programs that attempt to work with them.

The Assessment and Referral Court (ARC) List is a specialist court list in Victoria established to address the needs of accused persons who have a mental illness/cognitive impairment.  Operating at the Melbourne Magistrates’ Court the ARC List combines a problem solving court approach with case management support for accused persons.

The ARC List has received over 1100 referrals since its inception in 2010.  It has improved participants’ quality of life, reduced reoffending and provided participants with the opportunity to address the underlying causes of their offending behaviour.  The extent to which participants embrace the ARC List is reflected in the 80% completion rate of those accepted onto the program.

This paper examines the outcomes of over fifty participants with BPD who have participated in the ARC List and explores their interactions within the program.

 

The Court Integrated Services Program (CISP) – characteristics of successful program completion.

Glen Hardy1, Glenn Rutter2

1 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Glen.Hardy@courts.vic.gov.au

2 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Glenn.Rutter@courts.vic.gov.au

The Court Integrated Services Program (CISP) is a court-based support program operating in the Magistrates’ Court of Victoria which addresses issues underlying offending behaviour. It works with accused persons who are on bail, summons or remand pending a bail hearing, and have health or social needs that contribute to their offending such as drug and alcohol addiction, homelessness, disability, mental health or social and cultural isolation. The program provides short-term case management (up to four months) and referral for therapeutic interventions to assist participants to address their needs prior to sentencing. CISP case managers provide regular feedback to magistrates on the progress of each participant. This monitoring ensures that participants are “kept in view” by the court, with the aim of improving community safety. The CISP is a flexible model which has the capacity to respond quickly to changes in the population of accused who are appearing before the court. Recently, this has seen the program adapt to the challenges posed by the increased number of participants using crystal methylamphetamine (Ice) and also the increasing rates of family violence. Now in its 10th year of operation, the CISP operates at 12 court locations and supports approximately 2000 participants per year, with plans to expand the program to additional locations in the near future.

In 2016 the CISP was a gold award winner in the community-led category of the Australian Crime and Violence Prevention Awards.

Drawing on ten years of data this paper will examine indicators for successful completion and non-completion of the program and compare the characteristics of those who offend/reoffend post program completion.

 

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About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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