Mainstreaming TJ

Panelists:
Chief Justice Wayne Martin, Supreme Court of Western Australia
Judge Ian Dearden, District Court of Queensland
Dr Liz Richardson, Australian Institute of Judicial Administration
Magistrate Pauline Spencer, Magistrates’ Court of Victoria
Chair, Joanna Kalowski, mediator and judicial educator

Session description:

Magistrate Pauline Spencer will commence this session by introducing attendees to the concept of ‘Mainstreaming TJ’ and discussing the distinction between the therapeutic design of the law and therapeutic application of the law.

The panelists will follow this with discussion of the different ways in which they have each approached the therapeutic design of the law as well as its application in a range of jurisdictions.

This session will look at TJ in practice, with Judge Ian Dearden reflecting on court craft and the way judges operate in the existing court environment with all its constraints.

As head of jurisdiction, Chief Justice Wayne Martin will provide a wider perspective, addressing the scope for greater application of TJ principles in complex civil litigation, as well as its implications for court administration, resource and judicial management.

Dr Liz Richardson will then outline the tools for Mainstreaming such as the International Framework for Court Excellence, bench books and blogs. Jo Kalowski will follow with a brief discussion of the nature of judicial education in this area.

The session is intended to be interactive, and will provide attendees with the opportunity not just to hear from the panel but to ask questions and discuss current concerns.

Biographies

Joanna Kalowski
Joanna Kalowski is a mediator and judicial educator, and has worked with courts and tribunals in Australia, Asia and Europe. She has a background as an adult educator, and designs, leads and evaluates programs for lawyers and judges.

She is a former member of the Administrative Appeals Tribunal and the National Native Title Tribunal.

Chief Justice Wayne Martin
The Hon Wayne Martin was admitted to legal practice in Western Australia in 1977.  In 1993 he was appointed Queen’s Counsel.  At different times he has served as Chairman of the Law Reform Commission of WA and the Administrative Review Council, and as President of the Law Society of WA and the WA Bar Association.  In 2006, he became the 13th Chief Justice of the Supreme Court of Western Australia.  In 2012, the Chief Justice was recognised nationally when he was appointed a Companion in the General Division of the Order of Australia.  The Chief Justice currently holds many positions as Chairman or Patron, and is also the Lieutenant Governor of Western Australia.

Dr Liz Richardson
Dr Liz Richardson BA LLB MCrim Phd is the ICCE Officer at the Secretariat of the International Consortium for Court Excellence based at the Australasian Institute of Judicial Administration. She is also Senior Research Fellow at the Australian Centre for Justice Innovation at Monash Law Faculty. Liz recently completed her PhD at Monash University entitled ‘Envisioning Next Generation Mental Health Courts for Australia’. Her research interests are problem-oriented courts, diversion and intervention programs, therapeutic jurisprudence, sentencing, criminology, criminal law, self-represented litigants, judicial and court administration.

Judge Ian Dearden

Ian Dearden was a criminal defence and anti-discrimination lawyer who practised almost exclusively in those areas in Brisbane, Queensland, Australia from December 1984 until February, 2005. From 1 July 1997 until 24 February, 2005, he was the principal of Dearden Lawyers. That firm practiced in the areas of criminal law, anti-discrimination law, administrative law and professional misconduct. He had previously been a legal officer with the Legal Aid Office (Qld) for six and a half years, and an employed solicitor with Robertson O’Gorman for six years.  He holds the degrees of Bachelor of Commerce and Bachelor of Laws with Honours from the University of Queensland, as well as a Graduate Diploma in Legal Practice and a Master of Legal Practice from the Queensland University of Technology. He is the author, co-author, editor and/or contributor to a number of texts, including “The Duty Lawyer Handbook”, “Advocacy Basics for Solicitors”, “Criminal Law Checklists”, “An Annotated Guide to the Queensland Anti-Discrimination Act”, “The Lawyers Practice Manual (Queensland)” and the “Queensland Law Handbook”.  He was President of the Queensland Council for Civil Liberties from March 1994 until February, 2005, and was an executive member of that Council from 1985.  He was a member of the Council of King’s College at the University of Queensland from 1997 to 2000, and 2002 to 2003. He was appointed a Fellow of Kings College in 2009. He was a board member of Legal Aid Queensland from 2003 to 2005. In 2003, he was awarded a Centenary Medal for “distinguished services to law and civil liberties”. He has lectured and spoken extensively at schools, universities, seminars, professional and community groups on criminal law, anti-discrimination law and advocacy.  He was a member of the University of Southern Queensland (USQ) Law School Advisory Committee from 2007, and Chair from 2010 to 2013. He has been a member of its replacement body (USQ School of Law and Justice Board of Study) since 2014. He has been an Adjunct Professor of Law at USQ since 2011.  He is (proudly) a folksinger, songwriter, guitarist, multi-instrumentalist, former folk concert promoter and regular performer at folk clubs and folk festivals since the mid 1970s. His debut solo album, “What Took You So Long?” was released in December, 2014.  On 28 February, 2005, he was sworn in as a judge of the District Court of Queensland. Judge Dearden was the resident judge at Beenleigh District Court from January, 2007 until February, 2016, and is now based at the QEII Courts of Law in Brisbane.
Magistrate Pauline Spencer
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.

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.

The Family Drug Treatment Court: From establishment to practice and beyond

Magistrate  Kay  Macpherson2, Magistrate Greg Levine2, Ms Viv Mortell2, Miss Elisa Buggy1

1Judicial College Of Victoria, Melbourne, Australia, 2Children’s Court of Victoria, Melbourne, Australia, 3Department of Health and Human Services, Melbourne, Australia

The Family Drug Treatment Court was established in Victoria in 2014. The first of its kind in Australia, it has been developed using the principles of solutions-focused courts to address parental substance misuse where children have been removed from the family home due to the unacceptable risk this has caused. The Family Drug Treatment Court represents a fundamental shift in the way child protection matters are dealt with in the family division of the Children’s Court.

This panel presentation, featuring the Churchill Fellow and first Magistrate of the FDTC, the current Magistrate of the FDTC, and the Program Manager of the program will explore the design and development of the model, its implementation, and what has been found to work in this ground-breaking initiative (as well as what doesn’t).  Audience participation is encouraged and questions will be welcomed from the floor.

Biography:

Elisa is a passionate advocate of humanising the justice system, and an avid explorer of best practice in health approaches to the criminal justice system.  She has managed Drug Courts in two Australian States and established the first Family Drug Treatment Court in the country.  She has presented extensively, both nationally and internationally on topics relates to solutions focused courts and is actively working on a world class education program for Victoria’s Drug Court.  She loves meeting new people and sharing her passions with others.

Fact finding in Family Law disputes

Mrs Hilary Hannam1

1Family Court Of Australia, Parramatta, Australia

Fact finding in family law disputes, particularly in relation to allegations of family violence and child abuse presents many challenges for litigants and judges. This is especially so when many litigants are self-represented and victims may be required to cross examine or be cross-examined by parties who are alleged perpetrators. Nonetheless it is critical that all evidence relevant to the best interests of children be put before the court and be appropriately tested.

Family law disputes can also be protracted especially in the current climate of under resourcing. The result may be that children may endure unsatisfactory arrangements while their parents’ dispute progresses through the court system. Most of the parents utilising the Family Court who have been unable to resolve their dispute by alternate means have complex problems including mental illness, psychological disorders or substance misuse.

Division 12A of Part VII of the Family Law Act which requires that the court adopt a less adversarial approach to the conduct of child-related proceedings can assist in addressing these challenges. The author will outline how a judge of the Family Court can utilise the tools of the “less adversarial trial” to assist families embroiled in parenting disputes. These include early identification of risks to the children through the utilisation of family consultants attached to the court to inform early decisions such as interim orders. As the matter progresses the judge actively manages all stages of the litigation and leads the identification of the issues. Fact finding is enhanced through a relaxation of the rules of evidence and appointment of a single expert. As the proceedings are not strictly inter-partes the judges may identify proposals for the future parenting arrangements and is not bound by the proposals of the parties. The judge is expressly empowered to ask questions and required to direct the litigation with a focus on the best interests of the children.

It is argued by the author that the adversarial system of justice has its merits, especially as a method for fact finding, but some of the unsatisfactory features of adversarialism can be reduced through such a less adversarial approach. This less adversarial approach also has the advantage of enabling the judge to act in a more problem-solving and therapeutic manner with litigants in highly emotionally charged and complex litigation.

Biography:

Justice Hannam completed a Bachelor of Arts and Bachelor of Laws (Honours) from the University of Sydney in 1983. After practising as a solicitor, her Honour sat as a Magistrate of the Local Court of NSW from 2010, until her appointment as Chief Magistrate of the Northern Territory Local Court in August 2010. Her Honour then sat in Darwin and travelled to rural and remote locations in the Territory on circuit. Her Honour was then appointed to the bench of the Family Court in 13 August 2013.

Her Honour has a particular interest in therapeutic jurisprudence, and travelled to the United States in 2002-2003 as a Churchill Fellow to investigate specialised courts. Her Honour has been particularly taken by the Less Adversarial Trial process in the Family Court. Her Honour also has a particular interest in the children’s jurisdiction having worked in the Children’s Court in NSW, in youth justice and care and protection in the Territory and now parenting cases in the Family Court.

Restorative Justice and Problem Solving Approaches in the Community Justice Model

Elanor Peattie1, Libby Penman2

1 Victoria Legal Aid, Neighbourhood Justice Centre, 241 Wellington Street, Collingwood, Victoria 3066, elanor.peattie@vla.vic.gov.au

2 Victoria Legal Aid, Neighbourhood Justice Centre, 241 Wellington Street, Collingwood, Victoria 3066, libby.penman@vla.vic.gov.au

The Neighbourhood Justice Centre (NJC) is Australia’s only community justice centre and is focussed on developing new and innovative ways to tackle crime, social disorder and  conflict by utilising principles and practices of therapeutic jurisprudence and restorative justice. Throughout the almost 10 years it has been in existence, the NJC has undertaken a problem solving approach to justice in both criminal and civil matters.This often involves voluntary out-of-court meetings organised by the Neighbourhood Justice Officer where the person appearing before the court, their lawyer and relevant support people come together to discuss the client’s court matters and to develop options to tackle the underlying problems the person is experiencing and the reasons that have led them to be appearing before the Court. This problem solving approach has recently widened to include the use of restorative conferences in relation to appropriate non-intimate partner family violence cases involving criminal and intervention order matters In these cases, often the formal legal mechanism of obtaining a Family Violence Intervention Order does not in itself sufficiently deal with the conflict between the parties, and if left unresolved can often lead to an escalation of   conflict and harm.  In appropriate cases, restorative conferences can provide a safe mechanism for the parties involved in the conflict and the relevant police members to discuss the difficulties occurring in the family and what options there are for resolving that conflict, repairing the harmand assisting those affected to obtain the support and assistance they need. So far these conferences have been successful in achieving these aims and in providing an alternative mechanism for resolving conflict that is underpinned by participation and empowerment.

 

Biography:

I have been employed at Victoria Legal Aid since 2007 and have been working as the Senior Lawyer for Victoria Legal Aid at the Neighbourhood Justice Centre since 2014. Bachelor of Science and Laws with Honours in Law from University of Tasmania.

Prior to that I worked as a prosecutor at the Commonwealth DPP in Hobart and Perth and at the Office of Public Prosecutions in Perth. I have also worked as a Complaints Solicitor at the Law Institute of Victoria, as a Planning Lawyer in the UK and as a paralegal in the Rockies in Canada. I have a Masters of Human Rights Law from Monash University and a Bachelor of Science and Laws with Honours in Law from the University of Tasmania. I have a keen interest in restorative and therapeutic justice and have written content for the Alternative Dispute Resolution Journal entitled  ‘Restorative Justice in the Australian Criminal Process’.

The Hidden or Role of Frontline Court Staff: Ushers, Interpreters, NGO Workers and Others

Anton Shelupanov (MA Oxon)

Justice Studio, London

Abstract:

Research has demonstrated that courts, police and other law enforcement institutions secure better compliance by defendants when they apply procedural justice principles to practice. Consequently, with better compliance with court decisions, come better outcomes in terms of crime reduction and public safety, as well for the life chances of defendants. Courts are a unique setting, where traditionally, the onus to practice procedural justice has been placed on the sentencers. However, many aspects or procedural justice, from the defendant’s arrival at court, through to the completion of forms and understanding all of the proceedings rather than only judicial decisions, fall outside the remit of practice of sentencers. Instead, the author argues, ushers, court interpreters and NGO workers offering services in court have a crucial role to play in ensuring that a defendant’s entire journey through court is founded in procedural justice principles. In the case of court interpreters this is of particular importance as they often act as the main filter between the defendant and all other parts of the court system.

Partly arising from the author’s experience in facilitating the creation of the UK’s first large scale Community Advice desk at one of Europe’s busiest criminal courts, and partly based on conversations with frontline court based staff, this research seeks to shine a light on the hidden role of these staff in creating a system grounded in procedural justice principles, and the degree to which they are able to practice such principles in their day to day work. Also of interest is their ability to innovate, and the systemic constraints and enablers of their ability to do so.

Themes: Procedural justice, justice for court officers & administrators

Biography:

Anton is a specialist in justice reform and social innovation. Since 1999 he has worked with over twenty jurisdictions around the world and has led major penal reform programmes in China, Russia and a number of other Central Asian and Eastern & Central European countries. His expertise spans court reform, public and prison health, social investment, police & security sector reform, prison management, human rights, service design and community development. He has developed international instruments for the UNODC and the World Health Organisation, launched the Centre for Justice Innovation together with colleagues from the New York Center for Court Innovation, and worked with international organisations like the Ford Foundation, Open Society Institute (Soros) and the Calouste Gulbenkian Foundation. A graduate of Oxford University, Anton has written two books, numerous articles and lectured at King’s College London and the universities of Birmingham and Bradford.

Effective Participation of Vulnerable Accused Persons

Felicity Gerry QC1, Professor Penny Cooper2,

1 Queen’s Counsel London and Darwin speciliasing in complex cases involving vulnerable suspects. Leads the Indigenous Justice and Exoneration Project at Charles Darwin University. Affiliated member research group on Fundamental Rights and Constitutionalism at the Vrije Universiteit Brussel. Member of Management Committee of The Advocate’s Gateway producing toolkits for advocacy with vulnerable people and expert in an EU wide project on rights of children with mental disabilities. 9, Carmelite Street, London fgerryqc@carmelitechambers.co.uk and School of Law, Charles Darwin University, Casuarina, Darwin felicity.gerry@cdu.edu.au

2 Co-founder and chair of “The Advocate’s Gateway”, Inns of Court College of Advocacy, London; Visiting Professor of Law and leader of ‘Law in Practice’ module at University of Roehampton, London; visiting senior research fellow at Institute for Criminal Policy Research, Birkbeck, University of London; Honorary Visiting Professor of Law at City University, London; Barrister, Academic Associate at 39 Essex Chambers, London.   

The vulnerable accused: What needs to change in an adversarial system?

Research and practice developments in the last decade are slowly shifting the criminal justice process in relation to vulnerable accused. The authors critically analyse the current position and suggest there is still need for fundamental change. In cases involving vulnerable accused, it is not sufficient for a judge only to give a ‘special arrangements’ direction. Case preparation requires careful attention to how an accused person’s vulnerability is relevant to investigatory interviews, decisions to prosecute, fitness to participate in the trial, criminal responsibility, particular defences and the accused’s presentation in court.  Fair trials depend on proper arrangements that take into account the vulnerability of the accused and remove barriers to their effective participation.  The authors will propose a framework for a multilayered approach to  defending a vulnerable person that goes far beyond determination of fitness to plead; it will include the latest research and practice in investigative interviewing when the suspect is vulnerable, the use of interpreters,  the use of intermediaries, research on perceptions of judges and juries when the accused is vulnerable (in particular has when the accused has autism spectrum condition), the effective use of expert evidence and recent developments in appellate case law in relation to procedural fairness. Both authors have pioneered alternative approaches in England and Wales which have become embedded into the criminal justice system and have brought their expertise to other jurisdictions. This paper sets out the minimum requirements for a fair trial, the procedure that ought to be adopted in case investigation, preparation and presentation and the importance of expert evidence for vulnerable accused people. The authors will suggest that such adjustments are vital to the fairness of hearings and to the avoidance of miscarriages of justice.

Biography:

Queen’s Counsel London and Darwin specializing in serious and complex cases involving vulnerable suspects. Leads the Indigenous Justice and Exoneration Project at Charles Darwin University. Affiliated member research group on Fundamental Rights and Constitutionalism at the Vrije Universiteit Brussel. Member of Management Committee of The Advocate’s Gateway producing toolkits for advocacy with vulnerable people and expert in an EU wide project on rights of children with mental disabilities.

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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