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Changing the face of justice

News

Cite as: (2008) 82(12) LIJ, p.18

Justice Statement 2 is a roadmap for overhauling key aspects of the Victorian justice system.

The state government’s updated vision for the Victorian civil and criminal justice systems – Justice Statement 2 – has at its core an emphasis on dispute resolution, a streamlining of court resources, an overhaul of key laws and a new approach for dealing with mentally ill offenders.

However, Deputy Premier and Victorian Attorney-General Rob Hulls said that while the 35 separate projects contained in the Statement were intended to “simplify, modernise and reduce the cost of accessing justice”, he warned they could only be achieved with a “cultural change at the core of the legal system”.

Mr Hulls told the LIJ that the expansion of alternative dispute resolution (ADR), which he is calling “appropriate dispute resolution”, was “front and centre” of his ongoing reform program that began with the release of Justice Statement 1 in May 2004. [See “Justice Statement sketches Victoria’s future”, July 2004 LIJ, cover story, for more on the first Justice Statement.]

“In Justice Statement 2 we tackle systemic [problems] and build on existing themes of modernising justice, protecting rights and addressing disadvantage while championing new ones [such as] reducing the cost of justice and creating an engaged and unified court system,” Mr Hulls said.

Major initiatives of Justice Statement 2 include:

  • the promotion of ADR and judge-led, pre-litigation resolutions;
  • the introduction of a consolidated Courts Act for the Supreme, County and Magistrates’ Courts;
  • the creation of a single Criminal List;
  • an overhaul of the Crimes Act and several outdated laws, including property law and fences legislation; and
  • the development of an holistic method for dealing with the mentally ill within the criminal justice system.

LIV president Tony Burke said that while the LIV broadly supported the measures and direction of Justice Statement 2, he added that the real-world implications of the proposals needed to be addressed and resourcing issues considered.

“If the Attorney-General wishes to have his Justice Statements endure as a lasting legacy of his contribution to the Victorian judicature and the administration of justice, then there must be a commensurate commitment of resources,” Mr Burke said.

“Otherwise the reforms may founder [and] without a properly resourced legal aid system and modern court infrastructure the legacy may be ephemeral.” [See also From the President, page 4 of this edition of the LIJ.]

Regarding ADR, at the 14 October launch of Justice Statement 2, Mr Hulls warned the traditional adversarial system of court-based adjudication would be dismantled to minimise costs, maintain relationships and “truly resolve disputes rather than just have them determined”.

This would involve establishing pre-litigation protocols encouraging ADR processes such as collaborative law or pledges, where parties agree that they will not act for their clients if the dispute is not settled and proceeds to court.

“The cost of justice is far too high for most litigants and mediation in the community will be encouraged. A mutual and immediate outcome is often more satisfactory than one that is litigated. If it does go to court, courts will actively identify the core issues in dispute and try to resolve them using ADR techniques,” Mr Hulls said.

Mildura-based Gallagher Holcroft Lawyers principal and LIV Councillor Michael Holcroft said there were many instances where ADR was successful because of the pressure applied by the fact that legal proceedings had been issued or there was an impending hearing date.

“Parties are then brought to the table knowing that if they fail to resolve the dispute themselves, then the court will impose a decision on them,” he said.

Mr Holcroft also said access to justice would be further opened if the costs of a pre-litigation mediation were recoverable as costs in the action, as this could act as a deterrent to parties who “may otherwise attend mediation in less than good faith”.

Judge-led mediation in the Supreme and County Courts, where judges would be given clear powers to control proceedings, is promoted in the Justice Statement. However, Mr Hulls said retraining judges for the task was “absolutely crucial as often judges have been great barristers or solicitors but do not have the appropriate mediation skills required”.

Nearly $18 million was allocated in the 2007-08 state Budget for ADR initiatives, including $3.7 million for judge-led mediation pilots and $1 million to build up ADR awareness within the profession and public.

Mr Holcroft welcomed the proposed allocation of $6.2 million to expand community ADR services into regional Victoria as “many small disputes involving neighbours or family members, such as fencing disputes and nuisance claims, were well suited to community ADR”.

However, Victorian shadow Attorney-General Robert Clark said the push towards ADR could be seen as a way of shifting costs of civil litigation onto consumers themselves and a sign that courts were failing users.

The Peter Cashman 2008 Victorian Law Reform Commission (VLRC) Civil Justice Review found ADR can fast-track dispute resolution and reduces court costs and legal fees by strengthening the courts’ capacity to direct litigation, include both parties in the decision-making process and narrow the issues.

County Court Chief Judge Michael Rozenes said the Court had consistently supported ADR and that “the overwhelming proportion of civil disputes already settle before trial”.

“A challenge for the Court is to have these cases resolved at the earliest opportunity. In commercial and family property cases, the judges have used case conferences as a method of judicial dispute resolution,” he said.

“[However], it is likely there will always be a role for the profession in these processes because few judges are trained mediators and do not have the opportunity to caucus privately with the parties at a settlement conference.”

Chief Judge Rozenes said ADR processes could improve the pre-hearing settlement rate of serious injury cases, which comprise more than 80 per cent of all disputed cases despite comprising less than 30 per cent of all civil proceedings.

According to state government figures there were 3.3 million disputes in Victoria in the 12 months to March 2007, ranging from property arguments between neighbours to personal injury claims and will and contractual disputes.

However, Tolhurst Druce & Emmerson partner Ian Lulham said the government was “putting out a bushfire that doesn’t exist”, there was no evidence to prove civil litigation was clogging the legal system and that safeguards, including the Victorian Civil and Adminstrative Tribunal (VCAT) and professional conduct rules, “makes it impossible to run a reckless litigation case”.

Mr Hulls dismissed those arguments as “lawyers protecting their turf” but at the time of making those comments he did not produce any empirical evidence showing the cost of litigation had risen exponentially when compared with other services. However, he said Canadian research “has shown it [ADR] can be faster and cheaper and increase access to justice”.

Federal Attorney-General Robert McClelland admitted to the LIJ in October that he had no proof that the cost of litigation had risen exponentially. [See “Attorney-General’s central position”, November 2008 LIJ, page 26.]

Justice Statement 2 proposes to consolidate the Supreme Court Act 1986, the County Court Act 1958 and the Magistrates’ Court Act 1989 into a single Courts Act in the hope that a consistent structure will increase efficiency and resource-sharing.

The 2008-09 Budget allocated $38 million to “improve Supreme Court efficiency”, including the provision of more prosecutors, solicitors and three new Supreme Court judges.

The Statement suggests the establishment of a single Criminal List “to ensure cases were allocated according to their seriousness and complexity, to reduce delays in criminal trials and to make the best use of judicial resources by ensuring that judges preside over the ‘right’ trials”.

The proposal includes expanding the County Court’s criminal jurisdiction to hear offences such as murder.

Chief Justice Marilyn Warren said she had consulted heavily with Mr Hulls on Justice Statement 2 and welcomed many of the proposals but, while supporting many aspects of a single Criminal List, she said murder charges should only be heard in the state’s highest court.

“The exclusive jurisdiction [of the Supreme Court] is an acknowledgment of the significance of murder in outcome, penalty and social import ... Families of victims are entitled to have the highest court in the state deal with murder trials,” she said.

“To do otherwise would devalue their experience and disregard their legitimate expectations.”

Chief Judge Rozenes said while the County Court judges supported any proposal to improve efficiency and productivity, “they were not confident that much will be achieved if the hierarchical separation for criminal trials between the courts continues”.

“The judges believe a central criminal court, rather than a single Criminal List would best meet the complex needs of Victoria’s criminal justice system,” he said.

“A unified court would produce an environment of judicial collegiality where expertise could be shared and where flexible listing arrangements would make the most effective use of judicial resources.

“A central Criminal Court would be progressive and efficient, a one-stop shop where judicial resources are optimised and support services and administration streamlined.”

LIV Criminal Law Section chair Michael McNamara said while the Statement was “a map for the journey ahead”, it could also be described as a “road under construction”.

Mr McNamara said while many of the ideas were worthy of consideration, including judge-led mediation, others, such as a single Criminal List, “seem much harder to implement”.

“The reality is that we will have to look closely at all the proposals because, as clichéd as it is, the devil is in the detail.”

In other measures, a separate Mental Health List or dedicated Mental Health Court are being investigated to better deal with mental health in the criminal justice system.

“We have not [dealt with mentally ill offenders] well enough in the past and we are now looking at using the justice system in a more holistic way to ensure early intervention so those in need receive proper case management and treatment programs,” Mr Hulls said.

“There should be a specialised response and the courts [should be] a gateway through which people can find much-needed help.”

In the November 2008 LIJ (“Tailoring justice for the mentally ill, page 27), LIV vice-president Danny Barlow said mental health issues could be dealt with more effectively in the criminal justice system in the form of a “court within a court”, based on the Canadian system, which would include directed support services and specially-trained judicial officers.

Justice Statement 2 outlines legislation, including the Crimes Act 1958, Bail Act 1977, Fences Act 1968, Property Law Act 1958 and Transfer of Land Act 1958, to be reviewed as Mr Hulls believes they have become outdated, hard to read and often increase the need for legal advice.

The Crimes Act will be “rationalised, clarified and modernised” by consolidating criminal procedures currently regulated under separate Acts. A Bail Act review will be launched in response to the 157 recommendations of the October 2007 VLRC Review of the Bail Act.

The Property Law Act 1958 and Transfer of Land Act 1958 will be reviewed to address unnecessarily complex or redundant provisions and the Fences Act 1968 reviewed to ensure it is consistent with the government’s push towards ADR.

Mr Hulls said a number of Justice Statement 2 projects were already underway, with funding having been allocated through the Department of Justice budget.

However, he said initiatives, such as a Mental Health List and single Criminal List, were still subject to discussions with stakeholders and no decision on funding allocation or deadlines would be made until final models were decided on.

Mr Hulls said not all 25 initiatives of the first Justice Statement have been completed but pointed to the Charter of Human Rights and Responsibilities, the Neighbourhood Justice Centre and a network of Koori Courts as achievements.

Mr Clark, on the other hand, said the Statement was “littered with unfulfilled promises” and the current document was “yet another long list of proposals peripheral to the real needs for improving justice in Victoria”.

For a copy of Justice Statement 2, see http://www.justice.vic.gov.au/justicestatement.

Jason Gregory

The key initiatives

The 35 key initiatives contained in Justice Statement 2 are:

1. Complete an overhaul of the Crimes Act, introducing new legislation to consolidate and streamline criminal law processes

2. Review and streamline criminal asset confiscation law

3. Reduce court delays by speeding up processes for getting matters to court, identifying issues in dispute and improving case management

4. Reduce the number of appeals following jury trials

5. Amend the Bail Act to make it easier to understand

6. Develop legislation to clarify the powers and functions of Sheriff’s officers

7. Reform laws governing property and land transfer

8. Review and clarify the Fences Act

9. Participate in national reform of personal property securities law

10. Introduce legislation for nationally consistent wills and succession laws

11. Strengthen laws against discrimination

12. Act on the Victorian Law Reform Commission’s Report on Assisted Reproductive Technology and Adoption to clarify the law and protect the best interests of children

13. Review the Charter of Human Rights and Responsibilities in line with s44 of the Charter Act

14. Review the Guardianship and Administration Act to ensure it meets the needs of a diverse community and ageing population

15. Consolidate and streamline the laws relating to powers of attorney

16. Consider Victoria’s privacy regime

17. Boost services for victims of crime and enhance the role of victim support workers in the courts

18. Review funding arrangements for victims’ compensation

19. Evaluate and build on law reforms and services for victims of sexual assault and family violence

20. Identify opportunities to expand restorative justice programs

21. Consider a new approach to addressing the needs of people with a mental illness in the criminal justice system

22. Develop an integrated model for providing services for defendants whose offending is associated with acute disadvantage or marginalisation

23. Continue to improve assistance for those in legal need

24. Promote and expand ADR

25. Review the law in relation to non-family-violence-related intervention orders

26. Reduce cost and delay in the civil justice system

27. Consider the establishment of a Civil Justice Council

28. Consider the establishment of an Office of Self-Represented Litigants for those who are unable to afford legal representation

29. Develop a consolidated Courts Act to provide a statutory vision for the court system and judicial officers, and a consistent and transparent structure for the courts

30. Foster greater engagement between the courts and court users and the community by establishing a Victorian Courts Council

31. Consider the establishment of a single Criminal List in the higher courts

32. Implement agreed recommendations of a review of VCAT

33. Explore the establishment of youth peer justice panels

34. Explore a VCAT learning centre as part of the Judicial College of Victoria

35. Consider proposals for a new judicial complaints mechanism, clearer judicial appointment procedures and a national judiciary

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