Justice Must Serve

The Hon Gabrielle Upton is the Member for Vaucluse and NSW Attorney General. She previously held the position of Minister for Family and Community Services, a role in which she served from April 2014 until April 2015. In a wide ranging address to The Sydney Institute on Wednesday 27 July 2016, Gabrielle Upton put out a challenge for the justice system to recast justice “as a community service by putting people at the centre … [and] understanding where, when and how people want to access justice services and how we can best provide them. It means making justice fast, fair and accessible.”

 JUSTICE MUST SERVE

GABRIELLE UPTON

Thank you Gerard for your kind introduction and the opportunity, through you and Anne, to address The Sydney Institute tonight.

Our justice system in NSW has a long and proud history. It has evolved over 200 years and inherited many of the common law principles and processes from the United Kingdom. It is the nation’s first (obviously), the biggest and undoubtedly the best. But we are striving to make it better.

Tonight I want to share how and why we need to do just that.

Our society is based on the rule of law, which means it is applied to everyone, equally, by an independent judiciary. The rule of law is vital because it helps protect people’s rights and property, keep our community safe and support economic growth.

Our justice system is fundamental because it reflects our core values and beliefs. It allows us to deal with one another in good faith and get on with our day-to-day lives. And, although it is steeped in tradition, our justice system also needs to be modern, effective and efficient.

I always thought it was curious that as a community we demand a modern health and education system, but we don’t demand the same of our justice system. Maybe we are less demanding of it because it is steeped in tradition and has a certain kind of magic to its power.

In 1981 noted American legal scholar Marc Galanter quipped that: “Just as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice dispensing institutions.”

This important perspective challenges traditional notions of the NSW justice system. However, it is a perspective we must embrace. It recasts justice as a community service by putting people at the centre. It means understanding where, when and how people want to access justice services and how we can best provide them. It means making justice fast, fair and accessible.

However, experience says that when many people do come in contact with our formal justice system in NSW they can be disappointed. And I am not just talking about those found guilty…

It really doesn’t seem to matter if that contact is with the civil or criminal justice system – neither serves them well. Why this is, and the challenge and opportunity it presents, is the focus of my address tonight. With your indulgence, let me explain why we are, where we are.

Outdated court and tribunal system

The way our courts and tribunals work in NSW has not changed in a very long time. The network is the largest one in Australia, operating from more than 170 locations with 380 courtrooms in 162 courthouses. It was built primarily in colonial times. More than half the courthouses were built before Federation.

Old courthouses are expensive to maintain and resources are often used just to “keep the doors open”. It is not surprising that the maintenance backlog across the network is approximately $200 million. Make no mistake, there are a lot of sandstone and heritage features to take care of.

It is said that the original location of our courthouses across the State was determined by the “horse and buggy” rule – meaning that they should be located one day’s horse ride from each other. But now 85 per cent of the NSW population live within 50 kilometres of the coast and less than half of our courthouses are located there. In fact, over 60 per cent of all Local and District Court matters are heard at just 20 courthouses, the majority of which are in the Sydney CBD and Parramatta.

The aspiration of putting people at the centre of our justice system means that courts and tribunals should be welcoming, protect vulnerable witnesses and keep the people who visit or work there safe.

However, importantly, modern facilities like audio-visual links (AVL), remote witness testimony rooms and accessible and safe spaces for victims and other witnesses were not part of original courthouse design. And our justice system is still heavily reliant on paper-based, manual ways of working and on people attending court in person.

Unbalanced investment in the criminal justice system

When it comes to the criminal justice system, keeping our community safe is a core purpose. That purpose is reflected in our State Priorities including reducing domestic violence (which is also one of the Premier’s personal priorities), reducing reoffending, and reducing violent crime.

Gratifyingly, recent crime statistics published by the Bureau of Crime Statistics and Research (BOCSAR) show the majority of offences are stable or trending down. In the five years to March 2016 there have been steady decreases with robberies down by 49 per cent, motor vehicle theft by 32 per cent and non-domestic assaults by 19 per cent.

However, our criminal justice system is complex and interconnected and changes in one part of the system, whether it’s police, courts or prisons, affect other parts of the system. For example, more police can mean more arrests and more matters in court.

Despite these connections, coordination and reform has been piecemeal. Investment into policing has also exceeded investment into other parts of the criminal justice system. Between 2010/11 and 2014/15, recurrent funding for police increased by 17.4 per cent in real terms while for courts it decreased by 1.7 per cent and corrective services only increased by 2 per cent.

At the same time, police have increased their focus on detecting serious crime, with prosecutions for drug dealing and sexual assault rising by more than 25 per cent since 2011. Serious crimes have more complex evidence and longer trials so this has contributed to courts having an increased trial workload.

Despite the increased caseload, most of our courts have performed well. The Local Court, which handles 90 per cent of all criminal and civil cases, remains the best performing court in its jurisdiction across Australia for the ninth consecutive year. Both the Supreme and the Coroners Court also have exceptional clearance rates.

District Court criminal trial delay

This brings me to the District Court where increased police numbers and their targeting of serious crime has led to a great deal of work and subsequent delays. Right now there are almost 2000 cases waiting to be heard – double what it was four years ago. The time it takes to finalise cases that go to trial has grown over the last five years to just under a year on average.

The delays impact can be seen in 1) victims of crime, who experience prolonged distress and uncertainty; 2) witnesses who may forget or may not be able to recall vital evidence; and 3) accused being held in custody on remand – that is, awaiting trial – for longer. Not surprisingly, our prison population is at record levels. Between June 2011 and September 2015 that number rose by a whopping 18 per cent.

Civil justice: people not resolving their everyday legal problems

The challenges are not limited to the criminal justice system but extend to civil justice as well. This system primarily deals with “everyday legal problems” – problems we have with our bank, neighbour, landlord or tenant. These problems may seem simple, but they can be time-consuming, stressful and costly to solve.

In 2012, the Law and Justice Foundation of NSW conducted a survey of legal need and found that each year around 2.8 million people in NSW – that is half the NSW population aged 15 years and over – have a legal problem. Of these, approximately 85 per cent were civil law problems.

The survey found that people got advice for only half of all their legal problems and that they rarely started formal legal proceedings. For almost 20 per cent of legal problems, people said they took no action at all because it would be too stressful, too expensive, or simply because they did not know what to do.
“Everyday legal problems” need to have everyday solutions that are quick, simple and cost-effective. When people have disputes about money, the things they buy, the services they receive or the places they live, they should be able to resolve them quickly so they can get on with their lives.

Future state: fast, fair and accessible justice – overview

This snapshot shows that the case for change in our justice system is strong. We need to rebalance the criminal justice system, with both immediate measures and more substantive reforms. We also need to give people the information, services and tools to solve their civil legal problems – their “everyday legal problems”. And we need a more sustainable asset base with more flexible and innovative ways of providing justice services to the community.

As one of my first steps on this journey I established a Courts Consultation Committee. The Committee is chaired by the Chief Justice, the Honourable Tom Bathurst AC and comprises all heads of jurisdiction, representatives of the Bar Association and Law Society, the Department of Justice, myself and an independent member – Brian Long, a company director who brings extensive financial experience.

The Committee will be a valuable source of mutual insight and advice as we work through the challenges confronting the justice system.

As I mentioned, the District Court’s jurisdiction is the one most under pressure and a series of measures have recently been funded by the government to help reduce the delay in criminal trials coming before that court. In December I announced a $20 million package for more than 250 extra sitting weeks over 18 months from January 2016 to June 2017 for the District Court including: 1) two new District Court Judges who were appointed in March 2016; and 2) additional Public Defenders to be located in Port Macquarie and Tamworth and to work across an area including Armidale, Port Macquarie, Tamworth and Taree.

Last month’s Budget included a further $39 million package including 1) three additional District Court judges, with one based at Wagga Wagga and another in New England and 2) more prosecutors and public defenders. Taken together, these measures will make a real difference.

While I am proud this government has significantly boosted funding to respond right away to the District Court criminal trial backlog, changes across the criminal justice system – from Police to courts to prisons – are also essential. There are several reforms under consideration in this regard.

Table offences – Having some cases heard in the Local Court instead of the District Court is one such possible reform. Moving some jurisdiction to the Local Court would free up the District Court to deal with more complex criminal matters and allow less complex matters to be resolved faster in the less formal Local Court jurisdiction.

This would be possible where the Local Court could continue to impose sentences similar to those currently imposed by the District Court, and where there is a mechanism for the Director of Public Prosecutions, working with Police, to refer those matters that are more serious to the District Court. These safeguards are important because “fast” justice must not be delivered at the expense of “fair” justice.

Driver disqualification – Making the system fairer is another challenge and that is why we are considering changes to penalties for disqualified drivers. Automatic and lengthy disqualification periods often means a penalty is imposed which is disproportionate to the offence committed. Vulnerable members of our community, particularly in areas with poor public transport options, pay a heavy price and often reoffend anyway. I don’t have the answer tonight, I wish I had, but keeping our community safe has to be factored in as well.

These are two reform choices we could consider further.

Digital and online technology has an important role to play in improving access to justice. The rationale behind this is to move “data” rather than “people” so their legal problems can be resolved more quickly, easily and cheaply. For example, online and phone services mean people who live in remote or regional areas can avoid travelling long distances to a courthouse. We know there is widespread support for these services in regional areas because nine out of ten surveyed respondents said they would be happy to access them.

The NSW Online Registry is one of a raft of technological innovations we have already invested in. Users of the Registry can lodge and pay for up to 90 forms across the civil and criminal justice system; view case information; download documents; and view court lists three weeks in advance and one week in arrears.

The Registry is now a one-stop shop for the Supreme Court, the Land and Environment Court and the District and Local Courts. Around 30 per cent of online filings in the Supreme, District and Local Courts are done outside of court registry opening hours. Up to 4,800 forms are filed electronically each week and more than 300,000 forms have been filed since the Online Registry opened for business.

Using the Online Registry provides the convenience of accessing the court in your own time and from your preferred location. It can reduce waiting time for listings and turn-around time for document processing. And it means court registry staff are freed up to provide more custom services.

There is also a “Search NSW Court Lists” mobile app for Apple and Android devices that has been downloaded more than 14,000 times.

We have introduced Online Court, which is a kind of cyber alternative to having people appear multiple times at court ahead of the final hearing. Through this service, lawyers can make requests and seek preliminary orders, such as adjournments and timetabling, with the click of mouse. Parties to a dispute can enter a private, secure online chat room with the court registrar or a judge to have matters dealt with before the final hearing. Obtaining directions about the conduct of the case and setting a hearing date are other examples of things that can also be dealt with in the same way.
The use of audio-visual links (AVL) is already providing greater access to justice. Through our $40 million AVL Project there are now over 400 audio-visual suites through courts and tribunals, corrective services facilities, juvenile justice centres, police stations, Legal Aid offices, the Office of the Department of Public Prosecutions, the Aboriginal Legal Service and Multicultural NSW.

Using AVL means we can connect with people without physically bringing them to a courthouse. We have also reduced the need to transport prisoners, juvenile offenders, expert witnesses, interpreters and staff. Police can remain on duty at their base, rather than travelling and waiting to give evidence in court. For example, in 2015, witnesses appeared via AVL from France and New Zealand in a trial at the Goulburn District Court. And expert witnesses from the United States gave evidence via AVL to the Blue Mountains Bushfire Inquiry held at Katoomba Court.

AVL has also allowed us to help reduce the trauma for victims of domestic violence and sexual assault when they attend court. Victims can use “remote witness facilities” to give evidence from another room away from the accused.

And, speaking of innovation, in an Australian first we recently announced social impact bonds to target people released on parole, with the aim of reducing their rate of reoffending. The investment will support a new program, On Tracc, to provide up to 3,900 parolees over five years with intensive individual support and rehabilitation to help their successful reintegration into the community.

NSW has long been leading the way when it comes to using social impact investment to help address the serious social challenges facing our community. This has been by using the expertise of the non-profit sector combined with the financial support of private investors.

As I mentioned, our courthouses were built in a different time to meet different needs and we will continue to upgrade the technology in our courthouses.
Courthouses and tribunals must also cater for a variety of services. For example, they need to provide appropriate spaces for formal mediations, suites for lawyers to meet with clients, and safe spaces for juries and witnesses. These spaces are being incorporated into the designs of new courthouses – like Newcastle. And upgrades to existing courthouses like Wollongong and Wagga Wagga.

The court complex at Newcastle, which I was proud to open in February this year, provides a benchmark for how we want to provide fast, fair, accessible justice services to our community.

The $90 million courthouse is now the largest and most technologically advanced courthouse outside Sydney. It includes 10 courtrooms, two tribunal rooms, high definition screens for evidence playback and video conferences, jury rooms, legal suites and safe rooms where victims of domestic and family violence can wait before they are called to give evidence. I also opened the $17.5 million upgrade to Wollongong Courthouse in February. These new facilities include seven courtrooms, one of which is the heritage courtroom in a tribute to Colonial Architect James Barnet’s 1885 original courthouse design.

It may also be possible to deliver justice services in buildings other than courthouses. For example, the NSW Civil and Administrative Tribunal (or NCAT) – the State’s one-stop shop for specialist tribunal services in NSW, consolidating 22 former tribunals – often sits in a variety of locations that better match its less formal proceedings.

Being innovative about where and how justice services are delivered is the key to improving access to justice across the State.

As I said earlier, access to justice is about making it easier for people to resolve their “everyday legal problems”. They can be resolved without legal representation or court or tribunal proceedings. But the Productivity Commission said in its report on “Access to Justice Arrangements” in 2014 that people don’t know what steps to take.

We are developing a strategy that will improve access to civil justice. Our thinking about civil justice reform is along four themes: data, simple pathways, early dispute resolution and everyday justice.
There has been a lack of data in the civil justice system about the who, what, why, when and where of civil litigation. We need evidence for a clear understanding of what people need and what works so we can make good decisions. In particular we need to know 1) who is litigating; 2) why they are litigating; 3) the amounts involved; and 4) the outcomes people achieve.

What we do already know is that it is essential for everyone to be able to understand what their rights are and what options are available to them to use those rights. The government’s free online and phone service LawAccess NSW provides information and referrals for people who have a legal problem. This is a great starting point but it can be made much better. The Department of Justice is working on an upgrade to LawAccess, which will provide clear, practical solution pathways for two of the most common everyday legal problems – housing and debt.

American lawyer and civil libertarian Clarence Darrow once quipped: “Justice has nothing to do with what goes on in a courtroom; justice is what comes out of a courtroom”. Allowing people to solve their own problems with the assistance of LawAccess so that they can reach an outcome sooner and with less expense is the aim. I would like to think that LawAccess could be as simple as a mobile phone app.
Civil disputes often escalate because people don’t communicate with the other party to the dispute early. Government can support the early resolution of disputes, for example, by adopting a policy of having legal proceedings as a last resort where possible. The NSW government already has a Model Litigant Policy that provides guidance on best practice for government agencies in civil litigation matters in this regard.

However, we can extend the reach of such a policy to other parts of government. Local councils, for example, are responsible for 35 per cent of all the civil disputes in the Local Court. More than 80 per cent of these claims are for $2,000 or less. Early dispute resolution policies could require agencies, such as local government, to adopt strategies proportionate to the dispute, and could lead to the early resolution at minimal cost to all parties.

When litigating a civil dispute that cannot be avoided, people need a court and tribunal system that serves people better. As part of the development of a civil justice strategy, we are looking at a range of measures that could help make the court and tribunal system more accessible. These may include implementing online dispute resolution in NCAT, and then extending it to uncontentious matters in the courts if successful. This will make resolving a legal problem faster. It can also include improving the support services for self-represented litigants – that is, people who choose to represent themselves in legal proceedings rather than engaging a lawyer to advocate on their behalf. This will make it easier for people themselves to participate in solving their legal problems.

Conclusion

Justice services must be delivered in new, innovative and flexible ways that serve the people of NSW better. We will continue to add to the services that are digital, online and available 24/7. We will provide ways for people to resolve disputes earlier, potentially avoiding courts and tribunals entirely for some legal problems.

We will renew our asset management strategy, making sure our courts and tribunals are meeting the needs of today. And we will continue to critically examine and implement the reform required to ease the pressure on the criminal justice system and reduce reoffending.

Make no mistake, we are embracing the challenges and opportunities presented by our justice system. There is no time to waste.

REFERENCES

1. Galanter, M., “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law”, Journal of Legal Pluralism, No. 19, 1981, p.17. Available online viahttp://commission-on-legal-pluralism.com/volumes/19/19-contents.htm.html[accessed 22 July 2016].
   2. See the NSW Government State Priorities at https://www.nsw.gov.au/premiers-priorities(accessed 22 July 2016).
   3. NSW Bureau of Crime Statistics and Research, NSW Recorded Crime Statistics Quarterly Update: March 2016. Available online at http://www.bocsar.nsw.gov.au/Documents/RCS-Quarterly/NSW_Recorded_Crime_… (accessed 22 July 2016).
   4. NSW Bureau of Crime Statistics and Research, Online Crime Mapping Tool. Available online athttp://crimetool.bocsar.nsw.gov.au/bocsar/. Note that the percentage change figures quoted compare the rate of crime in the 12 months to March 2012 with the 12 months to March 2016.
   5. Based on analysis of NSW Budget Paper 3 schedules from Financial Year 2010/2011 to Financial Year 2014/2015 less standard escalation of 2.5% per annum.
   6. That is, “strictly indictable” offences under the NSW Criminal Procedure Act 1986. See Weatherburn, D., Fitzgerald, J., “Trial court delay and the NSW District Criminal Court”, Crime and Justice Bulletin Contemporary Issues in Crime and Justice, Number 184, NSW Bureau of Crime Statistics and Research, Sydney, August 2015, p.7. Full report available online viahttp://www.bocsar.nsw.gov.au/Pages/bocsar_news/Court-delay.aspx (accessed 22 July 2016).
   7. See Attorney General’s media release issued 29 January 2016, “NSW Local Court number one in Australia”, at http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2016/NSW-L…(accessed 15 June 2016). The Productivity Commission ROGS reports are available athttp://www.pc.gov.au/research/ongoing/report-on-government-services/2016… (accessed 22 July 2016).
   8. Weatherburn, D., Fitzgerald, J., “Trial court delay and the NSW District Criminal Court”, Crime and Justice Bulletin Contemporary Issues in Crime and Justice, Number 184, NSW Bureau of Crime Statistics and Research, Sydney, August 2015, p.1. Full report available online viahttp://www.bocsar.nsw.gov.au/Pages/bocsar_news/Court-delay.aspx (accessed 22 July 2016).
   9. As at September 2015, 31% of the total adult prison population was remand prisoners. See NSW Bureau of Crime Statistics and Research, NSW Custody Statistics Quarterly Update: September 2015, p.22 Available online athttp://www.bocsar.nsw.gov.au/Documents/custody/NSW_Custody_Statistics_Se… (accessed 22 July 2016). Around 40% of people held on remand are ultimately not given a custodial sentence and every day that a trial is delayed there is an extra cost keeping those people imprisoned.
   10. Weatherburn, D., Corben, S., Ramsey, S., Fitzgerald, J., ‘Why is the NSW prison population still growing? Another look at prison trends between 2011 and 2015’, Crime and Justice Statistics Bureau Brief, Issue Paper No. 113, NSW Bureau of Crime Statistics and Research, Sydney, January 2016, p.1. Available online at http://www.bocsar.nsw.gov.au/Documents/BB/Report-2016-Why-is-the-NSW-pri… (accessed 22 July 2016).
   11. Coumarelos, C., Macourt, D., People, J., MacDonald, H.M., Wei, Z., Iriana, R. and Ramsey, S., Legal Australia-Wide Survey: legal need in Australia, Law and Justice Foundation of NSW, Sydney, 2012. Available athttp://www.lawfoundation.net.au/ljf/app/&id=EDD640771EA15390CA257A9A001F… [accessed 15 June 2016].
   12. See Attorney General’s media release issued 6 December 2015, ‘Major District Court funding boost’, at http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2015/Major… (accessed 22 July 2016).
   13. See Attorney General’s media release issued 21 March 2016, ‘New judges to ease pressure on District Court, at http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2016/New-j…(accessed 22 July 2016).
   14. See NSW Government media release issued 21 June 2016, ‘Record investment in justice in NSW Budget’, at http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2016/Recor…(accessed 22 July 2016).
   15. The NSW Department of Justice commissioned Rebound Research to research regional community service provision in NSW. The research was conducted in August 2013. One of the purposes of the research was to examine the likelihood of members of regional communities in NSW adopting online court services. Ninety-one per cent of respondents are willing, to some degree, to access court services online. Thirty-nine per cent of respondents were “extremely willing” to access court services online.
   16. See joint media release from the NSW Treasurer and Minister for Corrections issued 12 July 2016, “Australian first initiative to prevent parolees from returning to prison”, athttp://www.treasury.nsw.gov.au/__data/assets/pdf_file/0007/128869/Austra… (accessed 22 July 2016).
   17. Productivity Commission, Access to Justice Arrangements Inquiry Report, Vol. 1, No. 72, 5 September 2014. Available at http://www.pc.gov.au/inquiries/completed/access-justice/report/access-ju… [accessed 22 July 2016].
   18. Visit the Law Access NSW website at http://www.lawaccess.nsw.gov.au/ (accessed 22 July 2016).