This edited collection brings together scholars and practitioners in every chapter to provide a comprehensive and unique exploration of courts in Australia. The primary focus is to identify controversies, challenges and change, in the form of potential reforms within the courts across Australian jurisdictions. Bringing forward original research and scholarship on a wide array of courts in Australia, combined with insightful practitioner perspectives, research will be effectively integrated with practice. This book is the first comprehensive collection of its kind to canvas the diversity of courts in Australia, providing comprehensive critical analysis of contemporary issues, debates and reforms. It considers the array of courts across state, territory and national jurisdictions in Australia, including coroners’ courts, family courts, criminal, civil courts and problem solving courts. It also adopts an intersectional approach, providing insights into the perspectives of various court users such as people with disability, ethnic minorities, Indigenous Australians, and victims of crime. Each chapter provides opportunities for further debate among scholars, practitioners and students regarding potential future directions for reform to improve the efficacy, equity and accessibility of Australian courts.This collection serves as an international ready reference for students, scholars and practitioners alike.
Author(s): Marg Camilleri, Alistair Harkness
Publisher: Palgrave Macmillan
Year: 2023
Language: English
Pages: 410
City: Cham
Foreword
Preface
Acknowledgements
Contents
Notes on Contributors
1 Context and Controversies of Australian Courts
Introduction
Contextualising the Australian Courts
Historical Context
Theoretical Context
Purposes and Functions of the Courts in Contemporary Practice
Courting Controversy
Access to Justice
Court Impacts on First Nations Peoples
Blurred Boundaries
Conclusion
References
2 Politics, Parliament and the Courts
Introduction
Parliament and the Courts in Australian Context
Controversies of Politics and Sentencing
Bail Law Reform
Mandatory Sentencing
Abolition of Suspended Sentencing
Access to Parole
Retrospective Sentencing
Guilty Plea Sentencing Discounts
The Challenge of Balancing Sentencing Policy and Public Opinion
Mechanisms for Accountability and Change
Conclusion
References
Practitioner Perspective: The Role of Parliamentarians in Making Laws
A Case Study: Queensland’s Move-on Laws and the Impacts on the Courts
Conclusion
Reference
Legislation
3 Juries in the Digital Age: Managing Juror Online and Social Media Use During Trial
Introduction
Contextualising Jury Trials and Online Information
Controversies in Juror Internet and Facebook Use
Types of Juror Internet and Facebook Searches
Factors that Increase Juror Internet and Social Media Use
Prejudicial Effects of Exposure to Online Pretrial Publicity About an Accused Person
The Challenge of Juror Non-compliance with Judicial Instructions
Managing a Time of Change: Juror Online Social Media Use During Trial
Active Juror Engagement
Collaborative Jury Directions and Education
More Diverse Juries Promote Compliance
Conclusion
References
Practitioner Perspective: A View from the Bench—Juries in the Digital Age
The Temptation of Jurors
Procedural Fairness
A True Verdict According to the Evidence
Managing the Risk
Conclusion
Reference
4 Courts and the Media
Introduction
The Context of Open Justice
The Controversies of Suppression Orders: A Right to a Fair Trial Versus the Right to Know
The Challenging Tensions Between Legal Orthodoxy and Changing Media Practice
Embracing Change: New Technologies and Opportunities for Connection
Conclusion
References
Practitioner Perspective: Pell, the Press and a Pandemic
COVID-19 and the Courts: More Accessible, Less Open
Pell and the Press: How Australian Democracy Was Undermined by International Reporting
A Responsible Press Does Not Forget Its Role
5 Prosecutions in the Summary Jurisdictions
Introduction
Context: Prosecutor Practice Within the Victorian Magistrates’ Court, an Increasingly Complex Summary Jurisdiction
Changes in the Summary Jurisdiction
Issues and Controversies with Police-Led Prosecutions
Professional Accountability and Regulation of Police Prosecutors
Police Prosecutor Discretion and Decision-Making
Need for Independence
Police Prosecutor Decision-Making is Opaque
High Workloads
Challenges to Change
Change
Conclusion
References
Practitioner Perspective: Police-Led Prosecutions in the Magistrates’ Court
Case
6 Bail Decisions: Key Challenges Driving Bail Refusal
Introduction
Bail in Context
What Is Bail?
Why Do We Have Bail?
How Is Bail Decided?
Who Is Refused Bail?
Bail Decisions: Critical Issues and Controversies
Challenges in Seeking Solutions
Avenues for Change
Conclusion
References
Practitioner Perspective: Key Challenges Driving Bail Refusal
Case Study
Reference
7 Delaying Justice
Introduction
Historical and Contemporary Context: Definitions of Delay and the Common Law
Underpinning Principles for Courts and Challenges of Reconciling Them with Efforts to Resolve Delay
The Delicate Interplay of Australian Court Performance Indicators and Due Process
Key Contemporary Controversies
Witness and Victim Alienation from the Court Process
COVID-19 Pandemic and Delays
Late Guilty Pleas
Adjournments
Bail in Criminal Cases and Lengthy Remand Periods
Delays in Decisions by Judicial and Tribunal Members
Challenges and Change: Cause for Caution in Seeking Reform to Address Delay and Some Ways Forward
Conclusion
References
Practitioner Perspective: Justice Delayed
Consequences of Unreasonable Delay
Causes of Extended Delay
Alleviating Delay and Its Consequences
Conclusion
8 Injustices and Inequitable Outcomes: Miscarriages of Justice and Wrongful Convictions
Introduction
Context and Controversies in Convicting the Innocent
Structural Over Causal Factors
Imbalance in the Australian Adversarial System
False Guilty Pleas
Vulnerable Populations: Equal Before the Law?
Contemporary Challenges in Accessing Justice
The High Cost of Justice and Unrepresented Litigants
Courts Under Pressure: Court Backlog and Pressured Pleas
Limited Avenues for Correcting Wrongful Convictions
For Change: Strategies to Minimise Unjust and Inequitable Outcomes
Increasing Avenues to Appeal
Alleviate System Pressures
Conclusion
References
Practitioner Perspective: Wrongful Conviction—The Case of Terry Irving
International Law and Practice
Apology
Inquiry
Requests for Ex-gratia Payment
Malicious Prosecution
Conclusion
References
Cases
9 Problem-Solving Courts
Introduction
Context: The Origins and Context of Problem-Solving Courts in Australia
The Development of Problem-Solving Courts
Manifestations of Problem-Solving Courts in Australia
Guiding Frameworks in Problem-Solving Courts
The Controversies of Problem-Solving Courts in Australia
Blurred Boundaries and Muddied Missions
Pressured Participation
Slippery Sentencing
The Challenges of Problem-Solving Courts in Australia
Inequitable Access
Assessment and Treatment
Case Co-ordination
Considerate Changes for Problem-Solving Courts in Australia
Just Invitation and Participation Procedures
Supportive Sentencing
Inclusion
Goal Clarity
Conclusion
References
Practitioner Perspective: A Reflection on Problem-Solving Courts in Australia
Background and Challenges
Reforms and Solutions
Sustainability of Problem-Solving Courts
Reflection
References
Notes
10 Indigenous Sentencing Courts
Introduction
Context: The Evolution of Indigenous Sentencing Courts
Controversies: Drivers of Hyper-Incarceration of Aboriginal and Torres Strait Islander People
Challenges in Implementing the RCIADIC Recommendations and Indigenous Sentencing Courts
Changes to Court Processes for Indigenous Peoples
Conclusion
References
Practitioner Perspective: Murri Court
The Court Process
Amaroo Community Justice Group
Successes
Sentencing
Conclusion
References
Note
11 Coroners Courts and Death Investigations
Introduction
Context: Coroners Courts Investigations of First Nations Deaths in Custody
Controversies in Coronial Responses to First Nations Deaths in Custody
Challenges in Coronial Processes in Achieving Justice Outcomes
Cultural Safety
Truth Telling
Accountability
Change in Coroner Court Practices
Adapting Coroners Courts
Beyond Adaptation to the Coroners Courts
Conclusion
References
Practitioner Perspective: Chasing Professionalism—The Practitioner Role in Responding to First Nations Deaths in Custody
References
Legislation
12 Victims’ Participatory Rights
Introduction
Context
Reforms Aimed at Enhancing Survivors’ Participation
Victims Impact Statements (VIS)
The Victims Charter Act 2006 (Vic)
Special Measures
Victims of Crime Commissioner Act 2015 (Vic)
Disability Bench Book
Victims of Crime in the Courtroom
Intermediaries
Restorative Justice
Controversies
Challenges
Recognising Victims’ Inherent Interest
Eroding Victims’ Sense of Justice and Confidence in the Justice System
Change
Between Codification and Implementation
Continuous Advocacy and Legal Representation
Conclusion
References
Practitioner Perspective: Victims/Survivors and the Courts—From Alienation and Secondary Victimisation to Participatory Rights
Reference
13 Children and Young People in Court
Introduction
The Context of Criminal Justice Responses to Children
Controversial Responses to Youth Offending
The Age of Criminal Responsibility
Children and Young People in the Legal Process
Challenges for Early Offending Children
Changes to Formal Court Processes
Conclusion
References
Practitioner Perspective a Participatory Approach to Young Offenders in the Children’s Court
A Participatory Approach
Effective Lawyers, Communication and Intermediaries
Visual Aids for Communication of Orders
Problem-Solving Approach
Time Saving in Court and Pre-charge Diversion
References
14 Family Courts and Family Violence
Introduction
Family Violence, Partnership Breakdown, Separation and Children in Context
Controversies, Challenges and Criticisms Emerging from Omission and Complexity
The 1975 Family Law Legislation
Addressing Family Violence Through the Family Court
The Magellan Program
Changing the Journey to Court
Family Violence Best Practice Principles
Further Legislative Change
The Lighthouse Project—Pathway for Change?
Pre-program—Family DOORs Triage Screening
The Program Proper—The Lighthouse Program
Change Brings Challenges: Addressing Family Violence in Parenting
Inquisitorial Framework
Safety
Length of the Program
Expertise and Education of Key Staff
Ongoing Issues
Conclusion
References
Practitioner Perspective: Family Law Professionals and the Court
References
Legislation and Cases
15 The Ur-controversy of Civil Justice
Introduction
The Context of Civil Justice in Australia
Controversy of Omission: The Problem of Access to Justice and Legal Need
Challenges: The Future of Civil Justice
Change: The Promise of Technology and Other Seismic Changes
Conclusion
References
Practitioner Perspective: A Reflection on Civil Litigation
16 Challenging Court Landscapes and Opportunities for Change
Introduction
Challenging Landscapes and Dimensions
Geography
Challenges in Times of Crisis
Justice for All?
The Challenge of Changing Societal Attitudes and Legislative Parameters
Searching for Balance in Challenging Landscapes
Other Key Challenges
The Case for Both a Micro and Macro Reform Agenda
Addressing Income Inequality and Social Disadvantage
Addressing the Needs of First Nations Peoples
Greater Focus on Victims and Participatory Rights
Improving Processes for Children and Young People
Reform of Bail Laws
Appointment of Magistrates and Judges
Jury Reforms
Public Involvement in Court Proceedings
A Need for Greater Clarity
Accountability and Transparency to Prevent Unjust Outcomes
Conclusion
References
Index
