May experience difficulty giving evidence due to lack of interpreters
Lack of familiarity with the courtroom
Kinship taboos (eg unable to speak of the deceased or speak about personal issues)
Indigenous people often do not use numbers when describing events
Insufficient recognition of customary/tribal law
Aboriginal imprisonment rates are disproportionately high
Koori Court (Magistrates’ and County Court) introduced in 2002/08 to acknowledge the cultural differences Indigenous people face. It is a sentencing court.
Aboriginal liaison officers (improve awareness of indigenous issues) working with Victorian police.
Extend the Koori Court- this could be furthered to include contested cases.
Recognition of Aboriginal Tribal law- recognise Aboriginal tribal law on a more systematic and formal basis
Increasing awareness of Aboriginal culture within the court system by providing court personnel with training programs
Increasing the number of indigenous court staff
Increasing funding for Aboriginal legal system
The cost of legal aid and representation prevents many ordinary people from having access to the legal system. This stops many people from pursuing their rights in the court of law.
The number of people absconding from bail is growing which disrupts cases adding to cost.
Trials are getting longer to hear and determine which adds to costs.
Conducting committal hearings slows down the system and is very expensive.
People changing their not guilty plea at the last minute, wastes months of preparation and adds to legal costs which could have been better used on other cases.
Legal aid funding is limited: applicants have to pass a means test. This tends to mean only the very poor or the very rich can obtain legal representation.
The federal court has taken over many cases that the High Court would have had original jurisdiction over.
The Family Court was created to remove matrimonial issues from the Supreme Court.
The jurisdiction of the County and the Magistrates’ Court was increased.
Increased court-conducted ADR ($3.7 million provided to increased judge-led mediation) in County and Supreme courts.
Judicial resolution conferences Courts Legislation Amendment (Judicial Resolution Conference) Act 2009 (Vic.). A Judge presides over ADR
Diversion to mediation programs in Magistrates’ Court.
Law students to do pro bono work. Or private law firms having a no win no fee policy.
The advertising of legal fees, this may help to reduce legal fees and encourage competition between legal firms. Thus, reducing fees without reducing efficiency and quality of the service offered.
Use of class action should be encouraged as it helps reduce legal fees and helps people take action against large corporations. However, this does have limitations as all people in the action must not only be identified but agree to the action.
Do-it-yourself legal kits.
Online legal advice offering cheap and quick access to legal services.
Delays in resolving disputes
Witnesses may not remember events as clearly as time passes
Witnesses may have moved interstate or overseas.
Witnesses may have passed away.
The accused, if bail was refused, would have been held on remand awaiting trial. This may cause hardship on his or hers family and cause the loss of employment
Delays in our legal system lead to an unsatisfied element of an effective legal system which is a timely resolution of a dispute.
Delays cause a lack of public confidence in the system, and frustration on the part of those forced to use it.
The price paid for long periods of waiting is disruption, stress and uncertainty.
Delays= costs. The longer a trial is delayed, the higher the price.
Increased use of ADR
Time limits: pre-trial and trial procedures
Sentence Indication: Criminal Procedure Legislation Amendment ACT 2008 (Vic.) extended practice of sentence indication to County and Supreme Courts. A judge reviews summaries of a case before the trial/hearing commences and advises the accused as to whether they are likely to receive a prison sentence if they plead guilty to the offence at the first opportunity.
Commercial court is a specialised division of the Supreme Court. Its aim is to resolve relevant civil commercial matters in a more timely and efficient manner through a case management approach.
Abolish committal hearings Victoria’s DPP has called committal hearings a costly and time wasting process. Accused persons could be presented directly for trial rather than going through the committal process.
Problems and Difficulties faced by individuals using the legal system:
Some individuals may face difficulties when trying to use the legal system due to their financial status, social or cultural differences, as well as systems and structures within the legal system. These problems could result in individuals being unable to pursue their case, having limited access to legal representation, or being treated unequally by the courts. Many of these problems have been recognised by the Justice Department of the Victorian Government, which in response formulated the Justice Statement in 2004, followed by the Justice Statement 2 in 2008. These statements outline numerous projects that have been or will be undertaken by the Victorian Government to achieve each of its goals:
Protecting rights and addressing disadvantage
Reducing the cost of justice
Creating an engaged and unified court system
You need to be able to discuss a number of problems and difficulties faced by individuals in using the legal system, as well as some actual changes needed to overcome these problems and enhance the effective operation of the legal system.
It can be an expensive process to pursue a legal case, and this may prevent or discourage some parties from pursuing a valid civil claim through the courts. This is particularly a concern for those parties whose dispute cannot be settled through ADR or is outside the jurisdiction of VCAT. Costs include the court fees (for filing, costs and charges for claims) which can range from approx $150.80 for a $10,000 claim in the Magistrates’ Court to $3077 to lodge a notice of appeal with the Court of Appeal. If a party chooses to have a civil jury then they bear the costs involved. In the County Court, for example, a jury costs $560.50 for the first day, $408.60 per day for days two to six and $810 a day from day seven onwards.
The other main source of expense is for legal advice and representation. Solicitors will usually be consulted to conduct pre-trial procedures and our adversary system necessitates that legal counsel represent parties during their trial. These bills can run to thousands of dollars.
There have been instances when a plaintiff’s costs of pursuing a case have been almost as much as the damages awarded by the court, leaving little money in the way of compensation for the injured or the wrong party.
A Justice Department survey showed that in a one year period to March 2007 there were 3.3 million disputes in Victoria, with the total costs of the disputes estimated to e $2.7 billion.
Victorian Legal Aid offers government-funded legal assistance, advice and representation, however, its funds are limited. Applicants for legal aid must pass both the means test (to assess their ability to pay for their own private legal representation) and the merit and reasonableness test (the likelihood of being successful in their case and whether it is reasonable for them to fund the case) in order to be eligible to receive legal aid. There are maximums placed on legal aid funding, which include limits of $12000 for adults and $18000 for child representatives in the Family Court; $40000 for criminal trials in the superior courts. Additionally, legal aid will not be granted in criminal cases unless there is a likelihood that the accused would receive a prison sentences, a suspended sentence or a fine of $750 or more. Victoria Legal Aid is often unable to represent parties in civil cases, but may grant assistance in civil law cases if the amount of the claim is $5000 or more. VLA will not grant assistance for matters involving residential tenancy, town planning, employment or building disputes, or change of name applications.
Changes to enhance effective operation
Recent changes to overcome lack of access due to financial difficulties
There have been a number of changes to increase the use of ADR methods in solving civil disputes. These have enjoyed overwhelming success (70-86 have been resolved before trial/hearing by different ADR schemes) with the effect of a substantial cost saving for parties and the courts. Schemes include the following:
Increase in court conducted ADR The Victorian Government made a commitment in the Justice Statement 2 to provide $3.7 million for judge-led mediation in the County and Supreme Courts. ADR coordinators have been employed in both courts to facilitate the increased used of ADR, and there have been a number of pilots of court-conducted ADR in each jurisdiction. The Supreme Court and the County Court commenced a 2 year pilot of judge-led settlement of conferences in 2010, drawing on similar successful programs in New Zealand and Canada. The Supreme Court has reported a 79% settlement rate with mediation and a cost saving of $30 million in legal fees.
Judicial resolution conferences the Courts Legislation Amendment (Judicial Resolution Conference) Act 2009 (Vic.) introduced the concept of the judicial resolution conference. This conference commences with an order or direction of the court. A judicial officer (magistrate/judge or associate judge) preside over the use of various ADR techniques between parties for the purposes of negotiating a settlement to the dispute. Methods for resolution include mediation, conciliation, early neutral evaluation, and settlement conference. This allows parties to draw on the expertise and authority of a judicial officer to assist them to negotiate a settlement based on their interests. The act ensures that anything said or done in the course of a judicial resolution conference will remain confidential and unable to be used in evidence at any further civil proceeding. Judicial resolution conferences are available in the Supreme, County, Magistrates’ and Childrens’ Courts.
Diversion to mediation program in Magistrates’ Court intervention order application, other than those for family violence matters, in selected Magistrates’ Courts, are being referred to the Dispute Settlement Centre of Victoria, Parties are encouraged to resolve their own disputes, thereby reducing the cost and time involved with a court hearing. The intervention order initially sought are for stalking and neighbourhood disputes.
Court annexed mediation in the Magistrates’ Court all defended civil disputes in selected Magistrates’ Courts where the amount is less than $10 000 are required to undertake mediation. This has seen a settlement rate of 86%.
Suggested changes to overcome lack of access due to financial difficulties
Abolish committal hearings- Victoria’s Director of Public Prosecutions. Jeremy Rapke QC, has called for committal hearings to be abolished, labelling them a costly and inefficient time wasting process. Victorian Ombudsman George Brouwer had previously called for accused persons to be presented directly for trial, rather than going through a committal haring. Abolishing committal hearings would reduce the expense of engaging legal representation for this hearing.
Contingency fees- these fees involve a plaintiff being legally represented under a cost agreement whereby they pay no legal fees if unsuccessful, but if successful they pay the legal firm a percentage of their damages. Contingency fees are prohibited in Victoria under the Legal Profession Act 2004 (Vic.), however they are used in some states of the US as a means by which wronged persons who cannot otherwise afford legal representation can pursue a claim.
Online legal advice- while there is increasing use of internet in providing legal information, there are few law firms that will provide advice online. This medium for communicating legal advice is becoming popular in the US, offering easy, cheap and quick access to legal services. These changes are aimed at increasing access to the legal system.
Delays in resolving cases and disputes
The problem of delays failing to uphold a timely resolution of disputes
Delays in legal processes and procedures can contribute to problems faced by parties in disputes and limit the effective operation of the legal system by cases not being resolved in a timely manner. The impact of delays on the parties in a civil case could include: increased stress, financial hardship while awaiting compensation, loss of memory of witnesses and loss of confidence in the legal system. In criminal cases the accused could suffer: stress, stigma of being charged with a crime, disruption to family and work life and the possibility of being held on remand for extended periods without trial. For society, a problem is that a dangerous criminal may be out on bail for an extended period while awaiting their trial.
Causes of delays in both criminal ad civil cases include reluctance in reporting a crime or pursuing a civil claim, which could result in the possible deterioration of evidence and lack of memory of witnesses; delays in gathering evidence due to increased complexities of cases; extensive re-trail procedures adding time taken before being ready to commence the trial; lack of available courtrooms and judges to hear cases.
Court resources have not kept pace with the increased case load of courts. Although Victoria’s crime rate is still relatively low, there has been an increase in the number of criminal cases, due to increased prosecution of organised crime and the emergence of new types of crimes as a result of technology. Civil cases have continued to grow as people are becoming more informed of their legal rights. In addition, cases are becoming more complex and therefore lengthier.
Victoria’s court backlogs are now among the worst in the country. By the end of June 2009 there were more than 35 000criminal cases and 19 000 civil cases pending in the Magistrates’ Court- one quarter of these were over 12 months old, and 8% of criminal and 12.7% of civil cases were over 2 years old.
Recent changes to overcome delays and achieve a timely resolution of disputes
Increase use of ADR
Time limits on criminal procedure- The Criminal Procedure Act 2009 (Vic.) set time limits for the completion of various stages in the committal in the criminal process.
Sentence indication- The Criminal Procedure Legislation Amendment Act 2008 (Vic.) extended the practice of sentence indication to the County and Supreme Courts. Sentence indication involves a judge or magistrate reviewing summaries of a case before a trial/hearing commences, at the accused’s request, and advising the accused as to whether they are likely to receive a prison sentence if they plead guilty to the offence at the first opportunity.
Commercial Court- this is a specialised division of the Supreme Court of Victoria. It’s aim is to resolve relevant civil commercial/matters in a more timely and efficient manner through a case management approach. One of the approaches is Early Neutral Evaluations where the parties receive a private and non-binding indication of the likely outcome of a dispute or specific issues in a dispute from a judge, rather than the judge who may hear the trial. This ensures that there is no prejudice in the evaluation.
Suggested changes to overcome delays and achieve a timely resolution of disputes
Extended court hours- The court hours of the Magistrates’ Court could be extended to reduce delays and improve access to justice. This could include night courts, afternoon and weekend courts.
Abolish committal hearings-Victoria’s DPP has called committal hearings to be abolished, labelling them a costly and inefficient time-wasting process. Victoria Ombudsman has previously called for accused persons to be presented directly for trial, rather than going through a committal hearing. Abolishing committal hearings would reduce delays in getting a criminal case to trial.
Social Disadvantage that causes difficulty in using the legal system
There are a number of groups within society who are not treated well by the legal system who sometimes are not treated well by their legal system in terms of their experiences in the courtroom and receiving unequal treatment. The individuals within these groups are sometimes restricted from getting a fair and unbiased hearing due to being treated differently from other parties in a case
Aboriginal people are often disadvantaged in their dealing with the legal system. A number of issues, including language and communication difficulties, and cultural differences contribute to this problem. A further issue is that customary Aboriginal laws and methods for resolving disputes may conflict with the Western criminal justice system. These factors have led to a disproportional representation of Aboriginal people in the criminal justice system (11 times more likely). Courtrooms can be intimidating settings for everyone. However, a number of factors exist that specifically disadvantage Aboriginal people. For instance, the Aboriginal way of communicating may mean that direct questions are unwelcome, or the reluctance to look people in the eye, as it is a sign of disrespect in Aboriginal culture. Aboriginal witnesses are often questioned by prosecutors with little understanding of cultural issues that may influence their responses, such as the cultural taboo to speak of deceased people or personal issues. It has been found that there is a strong relationship between hearing loss in Aboriginal people and poor outcomes in court. Hearing oss, combined with a language barrier, and unfamiliarity with legal terminology and courtroom procedures, is a significant contributor to the over-representation of Aboriginal people in the justice system.
There is a lack of indigenous legal representation, which can result in Aboriginal people facing court with inadequate preparation and legal advice, an unsuitable representation in court. This is also a reflection if the lack of Aboriginal people working the justice system in general.
Also operating in our society are aspects of tribal law, although the extent to which our courts accept these varies. The payback system is used by tribal Aboriginals to punish offences against their customs and can involve physical punishments such as beatings and physical violence. Some judges have taken this into account when sentencing, imposing lenient sentences under the court system with the realisation that the offender will also face the punishment from their community.
Recent changes to overcome problems faced by Aboriginal People
Koori County Court- the success of the Koori Court divisions of the Magistrates’ Court and Children’s Court saw the extension of the Koori Court concept to the County Court in 2009. It is a sentencing court that was established to overcome some of the cultural differences experienced by Aboriginal people in the legal system. The informal proceedings are aimed at ensuring that understanding of the accused, their family and the Aboriginal community. A Koori elder, or respected person advises the court on cultural issues, and these are considered in sentencing the accused. The objective of the change was to ensure greater participation of the Aboriginal community in the sentencing process though the role played in that process by the Aboriginal elder or respected person. However, the court is restricted only to accused Aboriginal people who please guilty to an offence within the County Court’s Jurisdiction (other than sexual offences or family violence offences, which are not heard by the Koori Court).
Suggested changes to overcome problems faced by the Aboriginal people
Extend the Koori Court- the workings and philosophy of the Koori Courts could be extended further to include contested cases. The Koori Court could then also hear cases where the accused has pleaded not guilty, and conduct trials or hearings, rather than just being a sentencing court. This would enable more Aboriginal people to experience this culturally relevant form of justice. The Justice Department has indicated that their priority is to use the existing Koori Courts, but expand the jurisdiction in relation to children; however, consideration of contested cases could be the next matter
Recognition of Aboriginal Tribal law-currently tribal law can be one of the factors taken into account when sentencing offenders, but this is not always the case. There have been calls to recognise Aboriginal tribal law within the legal system on a more systematic and formal basis.