Human Right, Human Services and The Law

Question 1. What are the reasons for this?

Both ‘justice’ and ‘efficiency’ are highly valued processes of the judicial system. Without either one of the processes, the end result may be flawed. The famous saying- “Justice delayed is Justice denied”, proves a valuable point with reference to efficiency of the legal system. The issue of piling up of cases is a problem that is being experienced by almost all the countries in the world.

The Magistrate Court is one of the lowest courts in the hierarchy of the Australian legal system, and has a general jurisdiction- which means that a case against any offence can be filed in this Court. Also, this court tends to second and third appearance and bail applications. A large number of cases are put up on the lists for hearing, each day, and it is ultimately on the judicial officer/Magistrate to make sure that all the cases are heard and disposed of according to its requirements (Currie, 2007). If this is not done, the cases are added to the next day’s list and the number of cases just keep on increasing, making it practically impossible to clear the list. The matters on the list cannot be arranged in a manner to keep the least number of cases pending as it is impossible to tell which case shall be dismissed instantly and which shall consume time. (Mack & Roach, 2007) The Authorities do not consider the fact that both the parties have to be willing and involved in the proceedings of the case to make progress and ultimately, render a decision on the same. If one of the parties to the case decides to prolong the procedure, things become difficult for the Magistrate, who has to decide whether to dismiss the case or to provide a chance to the defaulting party. (Coumarelos, Macourt, People, McDonald, Wei, Iriana, R & Ramsey, 2012) Australia follows that common law system (adversarial system), where the Judge is a mere spectator in the trial and cannot be directly involved with the proceeds.

The litigations that run for a long time consume a lot of resources have been given the term of ‘Mega-Litigation’. The reasons that cause delays have been identified as

  1. Case Load- it is very evident that the number of cases filed each day has drastically increased since the last 10 years. This may be a result of population growth or a rise in the level of crimes committed. Keeping up with technology and crime, the number of acts that have been criminalised have also increased, for e.g., cyber crimes did not exist 20 years ago. With the developments and progress marked in technology, this is a new crime that has been added to the list. With growing literacy levels, people are becoming aware of their rights.
  2. Duration of hearings- the duration of hearing out each case has gone up with the increased number of parties to each case or with the increased number of relevant laws that are made applicable to a single case. All parties demand a detailed discussion of their case, without thinking of the overall result it leaves on the legal system of the country.
  3. Resource issues- the resources of the judicial system do not match with the load that is put on it. There is a constant crunch of courtrooms, judicial officers, staff, judges as well as non-judicial staff. The inefficient management of the available resources results in further delay of justice.
  4. Party delays- the representatives of the parties to the suit request for extension of the hearing as they are not prepared with the evidence and arguments to be presented. Many a times, the parties themselves try to delay the matter as with time, the witnesses shall slowly forget the exact happening of the events which may give them a levy, or just reluctance of parties to settle cases.
  5. Court procedures- have always been lengthy and confusing. Due to the increased volume of cases that are ‘listed’ everyday, and the limited amount of time to complete the task, few of them are not heard and have to be ‘re-listed’. This results in a case being dragged on for ages after ages.

There are no remedies to the issue of court delays to the naked eye. There is no legal right to counter delays that plague the court proceedings, although there are guidelines to address the same. Australia is a signatory of the International Covenant on Civil and Political Rights (ICCPR), which states that “in the determination of any criminal charge everyone shall be entitled to be tried without undue delay.”[1] Common law has recognised the principle of ‘a right to a fair trial’, and that includes a trial without unnecessary delay. These provisions are just guidelines and there are no statutory provisions to prevent delays. (Thoemmes, 2011)

The use of Alternative Dispute Resolution (ADR), Arbitration, Mediation and Conciliation has brought some relief to the judicial system as it reduces the backlog of the courts and have also been proved to be a cheaper alternative to long drawn litigation suits. The further introduction of Tribunals and specific courts have reduced the pressure on the normal courts as the workload is now distributed among the few other authorities, but the major issues are yet to be resolved.

A few other temporary solutions that have been provided to the judicial system to reduce the pending cases are:

  • The number of sitting hours of the judges have been increased to try and dismiss a greater number of cases in a single day. Petty issues like those of bail or first-time petty offenders are tried by the vacation bench (court benches that sit and try cases during the vacation period).
  • Acting and additional judges have been appointed. They have been given the power to try cases and reduce the number of pending suits.
  • Advancing technology has been put to use and a computer-generated database has been created to store the information of each suit that is filed. The old issue of delay due to the file of the case getting misplaced has been solved, and the papers related to any case are now available at the finger-tips of any judge.
  • The number of appearances granted to each party has been minimised.

INITIATIVES TAKEN TO REDUCE DELAY IN LOWER COURTS

1990

The statute was amended to introduce a reduction in sentencing for guilty pleas that were made in early stages of the trial.

1991

A scheme of early hearings was introduced by the Court and the responsibility of prosecution in committal proceedings was partly taken by the DPP.

1992

To encourage earlier and frequent guilty pleas, a sentence indication scheme was introduced.

1993

A technologically advanced automated system of allotting matters to individual judges was introduced.

1994

The Court announced the ‘Strict Adjournment Policy’ which was designed to keep the rate at which trial matters were adjourned in check.

1995

Confessional evidence was allowed to be audio recorded to reduce the duration of the trials.

1996

Range of Court trying criminal matters by way of summary trials was increased. This brought down the workload on the Magistrate and District Courts. Number of sitting days of judges was increased.

Question 2. Discuss the effect on one vulnerable group i.e. one group in the community who already suffer disadvantage. Why do these factors affect this group in particular?

The Right to Justice is a basic claim that is followed by all the legal systems of the world. In the claim for equality, as a basic human and fundamental right, it is understood that all individuals have an equal claim to Justice (McDonald, 2014). While making laws in a state, it is never seen as to how the laws will have different effects on the different category of people living in the society. In a world with increasing crime rates, the aim of the legislation and the judiciary is to create a deterrent which may reduce crime rates (Australian Human Rights Commission, 2009). Thus, laws are made strict and the implementation leaves no offender to escape by way of loopholes in the law. This may seem logical to the educated class, who have an understanding of the functions and procedures, the illiterate are left helpless and in disadvantage. (Cunneen & Schwartz, 2008)

Delay in Court proceedings effect a number of people, including the victim, who is kept in custody till the trial is over or bail is granted. Other than this, the delays also affect the poor people of the country. It has been estimated that 13% of Australia’s total population lives below the poverty line and only 8% of those people get legal aid from NGOs and the Government. (ABS, 2009) These people who already live hand-to-mouth, will only get discouraged from coming forward and claiming their rights. The amount of money, energy and stress spent on the litigation suit brings down the morale of the poverty stricken public and they begin to prefer enduring the injustice rather than bring the matter to court and wait for years to get a final judgement. Most of these issues are usually social and economic related issues like housing, education, job opportunities and health care.

The most vulnerable group among the Australian population are the Indigenous Australians. These people were settled and were staying in the country before the British took over and colonised the area. They are known as the ‘Aboriginals and Torres Strait Islanders’. This particular group already suffers socio-economic disadvantages which include low incomes, inequal treatment for job opportunities, low education fulfilment, and legal issues. (Wei & McDonald, 2013) The restricted amount of education received by the group makes it difficult for them to get an equal understanding of the laws of the state, and as a result, they face multiple legal problems. An additional disadvantage is faced due to barriers to access of legal services based on social exclusion, cross-cultural factors, poor literacy rates, and poor knowledge of the laws and rights. Many a times, these families tend to ignore their legal issues or even if they do cater to them, reliance for advice is placed on non-profit legal aids instead of private lawyers due to financial issues, or on friends and family, who have suffered the legal issue before but have no understanding of how to solve the issue or of the law concerned with the subject. Over time, a minor unresolved issue gets converted into a complex matter, resulting in increased delay of court procedures, and the cycle becomes vicious. (Lin, Chen, Huang, Huang & Lai, 2012) It has been reported that the imprisonment of a majority of Indigenous Aboriginal women is due to unpaid fines. As mentioned above, the new policies and laws that have been introduced in the recent decades aim to be ‘tough on crime’ and have created new issues for people with limited legal aid. The Australian legal professional workers have tried to address this issue by working for the undermined for one week every year without collecting any fees, and yet, they feel that there is so much more that could be done from the side of the Government. (Kelly, Dudgeon, Gee, & Glaskin, 2009)

There are multiple instances which show the drastic difference in police behaviour towards the Indigenous people. In 2014, a 22-year old native was declared dead while she was detained, in custody for unpaid fines. The death occurred 48 hours after the visit to the hospital, when the offender claimed that she was not feeling well. The medical professionals did not find the need to keep the victim under observation and released her. The reason of death was recorded to be ‘septicaemia and pneumonia’. The coroner specifically reported the ‘inhumane’ treatment of the victim by the police.[2]

It may be imagined, a section of people, who are already vulnerable and reluctant to approach the legal system, now have an additional issue of long-drawn litigations where it might take years for justice to be given. It has been 6 years since the case of Ms. Dhu (mentioned above) came to light, and no action has been taken against the officers related to the case. The officers-in-charge were put under and internal inquiry, which died down later on and none of them were punished for their lack of compassion towards the victim. Incidents of this sort only discourage the aboriginals from approaching the legal system for justice.

Thus, a decrease in the number of delays in court proceedings can help the public in ways unknown to the authorities. It will not only solve the direct issue of pending cases, but will also help the public trust the legal system for justice.

References for The Achievement of Justice in The Local Court

Coumarelos, C., Macourt, D., People, J., McDonald, H. M., Wei, Z., Iriana, R., & Ramsey, S. (2012). Legal Australia-wide survey: Legal need in Australia (Vol. 8). Law and Justice Foundation.

Cunneen, C., & Schwartz, M. (2008). The family and civil law needs of Aboriginal people in NSW: final report. Retrieved from http://www.legalaid.nsw.gov.au/__data/assets/pdf_file/0016/5515/Family-and-Civil-Law-Needs-of-Aboriginal-People-in-NewSouth-Wales-report.pdf

Kelly, K., Dudgeon, P., Gee, G., & Glaskin, B. (2009). Living on the edge: Social and emotional wellbeing and risk and protective factors for serious psychological distress among Aboriginal and Torres Strait Islander people. Darwin: Cooperative Research Centre for Aboriginal Health.

Legal, S. C. A. (2009). Submission to Inquiry into Access to Justice. Submission to Standing Committee on Legal and Constitutional Affairs’ Inquiry into Access to Justice.

Lin, C. C., Chen, K. P., Huang, K. C., Huang, Y. L., & Lai, H. P. (2012). The legal problems of everyday life: the nature, extent and consequences of justiciable problems experienced by Taiwanese.

Mack, K., & Anleu, S. R. (2007). Getting through the list': Judgecraft and legitimacy in the lower courts. Social & Legal Studies16(3), 341-361.

McDonald, H. M., & People, J. (2014). Legal capability and inaction for legal problems: knowledge, stress and cost. Updating Justice41, 1-11. Retrieved from http://www.lawfoundation.net.au/ljf/site/templates/UpdatingJustice/$file/UJ_41_Legal_capability_and_inaction_for_legal_problems_FINAL.pdf

Productivity Commission. (2006). Steering Committee for the Review of government service provision. Report on Government Services 2006. Retrieved from http://www.pc.gov.au/gsp/overcoming-indigenousdisadvantage/keyindicators2007

Productivity Commission. (2007). Steering Committee for the Review of government service provision. Report on Government Services 2007. Retrieved from http://www.pc.gov.au/gsp/overcoming-indigenousdisadvantage/keyindicators2007

Thoemmes, F. J., & Kim, E. S. (2011). A systematic review of propensity score methods in the social sciences. Multivariate behavioral research46(1), 90-118.

Thoemmes, F., & Liao, W. (2011). An SPSS R menu for propensity score matching. Retrieved from http://arxiv.org/ftp/arxiv/papers/1201/1201.6385.pdf

Wei, Z., & McDonald, H. M. (2014). Indigenous people’s experience of multiple legal problems and multiple disadvantage working paper. Retrieved from: http://www.lawfoundation.net.au/ljf/site/templates/UpdatingJustice/$file/UJ_36_Indigenous_multiple_legal_problems_and_disadvantage_FINAL.pdf

[1] ICCPR (New York, 19 December 1966), Article 14(3)(c).

[2] ABC News, 2014. Retrieved from: https://www.abc.net.au/news/2017-07-31/ms-dhus-family-prepare-to-take-on-government/8752306

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