Drug Law Reform

Drugs on Dark

by Stan Winford, Associate Director, Research, Innovation and Reform.

Since the mid-80s—on paper at least—Australian drug policy has been based on the principle of ‘harm minimisation’. Harm minimisation is an overarching framework, intended to guide drug policy responses to the harmful use of licit and illicit drugs. Set out in the National Drug Strategy, the framework is underpinned by the ‘three pillars’ of ‘supply reduction’, ‘demand reduction’ and ‘harm reduction’. Supply reduction refers to law enforcement activity aimed at reducing the supply and availability of drugs.  Demand reduction encompasses treatment services and preventative strategies that aim to prevent or delay the uptake of drugs, or stop or reduce drug use once it has commenced. Demand reduction is usually thought of as a continuum that ranges from prevention and education through to treatment interventions for people who use drugs. Harm reduction, the third pillar, accepts that despite the existence of the other two pillars drug use occurs, and aims to reduce its harmful consequences.

Harm minimisation should reflect a balance of all three of these approaches. This all makes sense: drug-related harms occur in a variety of contexts, so responses need to be multi-faceted. The reality, however, is that each of the pillars attract vastly different levels of funding and support. In Australia, approximately 66% of funding is spent on law enforcement activities. Spending on treatment attracts 21%. Only 9% is spent on prevention, with just 2% spent on harm reduction. Harm reduction is the poor cousin, while supply reduction takes the lion’s share, despite little evidence of its success.  In fact, while ‘record seizure’ announcements are made with increasing frequency—with police and customs proudly displaying the ‘massive drug haul’ at photo opportunities engineered to demonstrate their successes and return on investment for government—recent studies indicate that Australia has one of the highest usage rates of illicit drugs in the world, with methamphetamine usage in particular experiencing strong growth, and price and availability suggesting an illicit drug market without significant supply side challenges.

Harm reduction strategies, by contrast, seems to be withering on the vine. Some argue that as long as harm minimisation policy remains lop-sided, harm reduction will be undermined by the focus on enforcement. There are those who also argue that enforcement and supply reduction activity is becoming a source itself of substantial drug-related harm.

There are many examples which can be cited in support of this argument. One such example is the use of drug detection dogs in nightclub precincts or at music venues. Such highly visible policing operations have followed well-publicised incidents of drug-related harm such as multiple overdoses and emergency admissions to hospitals associated with particular events or venues. To what extent is the use of dogs reducing drug-related harm? One might think that they may serve as a deterrent, reducing the overall use of drugs and prompting drug users to decide the risk of apprehension outweighs the benefit of a high. Research involving drug users, however, indicates that they are employing a range of adaptive responses to avoid detection which themselves may be particularly risky and lead to additional adverse health impacts. Drug users have described resorting to ‘gobbling’ or rapid consumption of large quantities of drugs, pre-loading, inherently dangerous methods of drug carriage and concealment practices including bodily secretion.

Another example, critiqued along similar lines is the intermittent use of police operations in drug ‘hot spots’. These operations often follow media coverage of complaints about loss of amenity associated with overt dealing: disturbingly drug-affected people on the streets, discarded needles, and overdoses.  The police responses are intended to disrupt street-based drug-related activity, targeting street-level drug trafficking and use. They often cause a cessation of activity in a location for a period of time. However, the adverse effects for drug users can include impeding access to important health and other social supports, such as needle exchange programs. Intense policing activity in the form of temporary operations can also break links built carefully by street-based outreach support and treatment referral services. These are aimed at transient populations, such as people experiencing homelessness, and are designed to intervene in devastating cycles of disadvantage associated with drug use. Such policing activity may also be counterproductive from a supply reduction perspective. One effect is the displacement of drug trafficking activity to other locations, creating new challenges for monitoring and enforcement of drug related crime. This displacement effect may also undermine planning and resource allocation for harm reduction programs and services and local targeted initiatives.

Another phenomenon which some say can be directly traced as a response to supply reduction strategies is the emergence of new psychoactive substances such as so-called ‘synthetic’ drugs in existing drug markets. ‘Legal highs’ such as the synthetic cannabinoid ‘spice’ began to emerge, and many variations followed after regulators responded. The appearance of other psychoactive substances such as NBOMe as analogues for more well-known illicit drugs such as LSD in response to changes in regulation, price and availability adds to the suggestion that some forms of supply reduction activity may function as a stimulus for the rapid evolution of the drug market. Changing patterns of use are also seen in response to enforcement strategies. In 2016, a NSW Ombudsman report indicated that some drug users were switching consumption from MDMA/ecstasy to GHB—a colourless and odourless drug which is difficult for users to accurately dose, and has been linked to many overdoses—purportedly because they believed it was harder for drug detector dogs to detect. Finally, some argue that increasing potency of some illicit drugs is a response to the need to reduce the risks and cost associated with the movement of larger quantities of drugs between manufacturer and consumer. In short, these unintended consequences of supply reduction strategies are thought by researchers to represent responses of drug users and drug markets to variations in regulation, availability and detectability of alternatives.

Whether these concerns are warranted is difficult to assess, since the debate about the most effective way of responding to drug-related harms tends to be one-sided.  Just as certain supply reduction strategies are pursued uncritically in the face of mounting evidence of failure, claims about their arguably counterproductive consequences for some reduction strategies are rarely examined in the cold light of day. The overwhelming focus on law enforcement inhibits meaningful public conversations about harm reduction. Because politicians and police—and particular elements of the media to which they respond—are so focussed on sending an unequivocal message about the harmfulness of drugs, it seems impossible to publicly admit that people continue to use drugs and that things can be done to reduce harms associated with drug use. This nuance, apparently, is not compatible with the message which must be sent, and the perceived political risk of deviating from it. Any possibility of a response to drug-related harm that acknowledges the fact that people continue to use illicit drugs is ruled out both rhetorically and practically.

This also means that new measures designed to reduce harm can be quickly discounted despite compelling evidence and widespread community support. Medically supervised injecting rooms are a good example of this phenomenon. There are now more than 100 of these facilities in existence around the world, and positive evaluations provide evidence that they reduce overdose-related deaths, connect drug users with support and treatment where needed, and reduce the spread of blood borne viruses such as hepatitis. There is no evidence that they lead to an increase in crime or drug use in and of themselves. In Victoria, a recent coronial inquest into an overdose death in the Richmond area following a spate of similar deaths led to a recommendation that a medically supervised injecting facility be established. A coalition of local supporters including ambulance and firefighters’ unions, local traders and community members and councillors called on the State government to establish such a facility. A private member’s bill has been introduced into the Victorian Parliament. The possibility has nonetheless been ruled out by the Victorian Government. There remains only one such facility in Australia, established in Kings Cross in 2001.

Similarly, governments in Australia could begin testing drugs as part of a drug monitoring system aimed at reducing harm and increasing safety. Despite numerous calls and the success of programs in Europe and the United Kingdom, properly implemented ‘pill testing’, which studies have shown can reduce drug-related harms and change patterns of use in a positive way has failed to attract support from Australian governments. Part of the reason for the reluctance to allow for the possibility of ‘pill testing’, once again, is the problem authorities seem to have with communicating a message that involves harm reduction. How can we support testing drugs to make their use safer, they say, when our message is that people should not use drugs because they are unlawful? Instead, the unsubtle imagery used in public education campaigns is that of grotty clandestine labs and unhygienic chemistry involving solvents and drain cleaner. In fact, police have information about the composition of seized and forensically tested drugs, but it is not made available to the public in ways which could change patterns of consumption, and reduce harm. To try to do so in the absence of official support, communities of drug users have established their own early warning systems, posting images of pills and descriptions of their composition and effect.

This unwillingness to address harm reduction also means that little heed is paid to the voices of people who actually use drugs, and what might change their behaviour. While public policy innovations like ‘nudge theory’ are beginning to influence approaches in other contexts, governments maintain an entirely unsophisticated approach to service and program design when it comes to harm minimisation. For example, one strand of the opposition to ‘pill testing’ proceeds on the premise that drug users are too unsophisticated to distinguish between information warning them about the chemical composition of a drug they plan to consume and will read testing as a green light for drug use. In fact, there is research evidence to demonstrate that this is clearly not the case, and plenty of evidence that could underpin a more effective response if only there were the will to do so.

Meanwhile, a wilful blindness, officially, to the reality that drug use occurs in prison amongst prisoners is partly to blame for the absence of needle and syringe programs in Australian prisons. Prison needle and syringe programs are endorsed by Australian health and medical peak bodies, as well as global bodies like the WHO, UNAIDs and UN office on Drugs and Crime. This state of affairs presents a significant public health risk, since almost all prisoners eventually return to the community. There are some promising signs in some Australian jurisdictions that this may change, with the ACT government in particular expressing support for a trial. On the other hand, other examples suggest that it might not be wise to hold our breath. The extraordinarily drawn-out struggle of Victorian parents using cannabis oil to treat their epileptic children seeking law reform that would permit limited use of cannabis for medical purposes is an episode that shows just how cautious politicians feel that they need to be to avoid exposing themselves to the risk of being associated with policies that could be interpreted—however absurdly—by political opponents as the beginning of the slippery slope that leads to legalisation.

As well as making good policy difficult politics, an overt focus on supply reduction measures creates an environment conducive to discrimination against drug users. Stigmatisation means drug users are less likely to identify themselves as drug users and drives them away from accessing treatment and support. Discrimination against drug users has a long history in Australia. In 2003, for example, attempts to change the Disability Discrimination Act to permit discrimination against drug users were introduced to the Australian Parliament but did not become law after a concerted community campaign. Another example that can still be found in Victorian statute books is the Victims of Crime Assistance Act, which enables a court to take evidence of previous unrelated illicit drug use into account to exclude victims of crime from access to assistance. Only last month, the Commonwealth budget included a proposal to drug test NewStart recipients without a clear policy objective and no evidence base, amid concerns from experts about the harmful consequences of withdrawing financial support from people with substance use disorders. Indeed, some believe that an evidence base or policy objective are unnecessary when illicit drugs are involved.  The mere involvement of illicit drugs is apparently sufficient to justify disproportionate or inconsistent responses. For example, drug driving laws penalise drivers merely for the presence of certain illicit drugs in their bodies, rather than a level demonstrated to result in impairment. Drink driving laws by contrast require a blood alcohol content consistent with impairment before a driver may be sanctioned. In Australia unlike in the United Kingdom or New Zealand, drugs are not classified as more or less serious for the purposes of the criminal law and sentencing.  The curious effect of this, among other things, is that when sentencing a drug trafficker, a Victorian judge is not permitted to distinguish the penalty imposed on the basis that the drug in question was, say, cannabis rather than heroin.

What, then, does all of this tell us? If the eminently sensible principles of ‘harm minimisation’ are to be effective in reducing harms associated with drug use, then a number of changes must occur. First, there must be a more balanced approach to funding and support for the ‘three pillars’ of Australian drug policy.  Secondly, balance must also be returned to the debate about how best to respond to drug-related harm. This balance can only be achieved if strategies linked to each of the pillars are actually assessed on the evidence, and given the opportunity to operate effectively without being undermined by poorly targeted enforcement strategies. It should no longer be enough for politicians to be satisfied with being seen to be ‘tough on drugs’, whether or not this response is actually effective. Thirdly, we need to be grown-up enough to admit that illicit drug use occurs, and recognise that we can reduce associated harms without undermining the enforcement message. People can cope with more than one message, and attempts to reduce drug-related harm are not the same thing as condoning the use of illicit drugs. Finally, if our responses are to be effective, it is critical that the missing voices of those who are closest to the problem—and with the greatest stake in its resolution—are heard. If we are not listening to them, how can we expect them to heed the messages travelling in the other direction? If we do not make these changes, we cannot expect to see changed outcomes, and can rightly be accused of standing by while discrimination, disadvantage, ill-health and entirely preventable deaths continue to occur.

This blog post was inspired by a Wheeler Centre event – Question Time: Drug Laws, on 16 May 2017 at which CIJ’s Stan Winford was a panel member

A podcast of this event can be found here at the Wheeler Centre website.

A Federal Charter of Human Rights: Would it make any difference?

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Left to right Helen Metzger, Veronica Snip, Brigette Rose, Frank Aloe, Luke Fowler.

In 2016 the Centre for Innovative Justice was approached by the Human Rights Commission to conduct a project exploring and evaluating the impact that a federal Charter of Human Rights would have had on the outcomes of significant Australian cases and laws.  Below the five JD students who undertook this huge task reflect on their time working on this fascinating project:

Our task

We considered the potential impacts of a federally legislated Human Rights Charter by assessing how such a Charter would have affected the determination and outcomes of significant Australian cases and laws.

What it involved

Our initial brief was to take the Victorian Charter (Charter Of Human Rights and Responsibilities Act 2006) as the basis for designing a ‘model’ Charter. Ultimately, influenced by other human rights instruments (for example, the ACT Charter and the UK Human Rights Act) we expanded the Charter to include federally relevant provisions, the right to commence legal proceedings against public authorities on the basis of the Charter alone (which differs from the Victorian Charter in which another cause of action is also required to attach the Charter arguments to), and to seek remedies. Encouraged by our mentors, we decided to draft our model Charter, in order to test it fully. You can view our model Charter at Appendix 1 of our report.

Once the Charter was drafted, we applied the tests within it to the decisions and legislation we had been given to consider, by placing ourselves in the shoes of the Parliament, public authorities (who make decisions in accordance with legislation) and the Courts.

For example, when standing in the shoes of Parliament, we had to apply the following test to the legislation under consideration:

  • the nature of the right being limited;
  • the importance and purpose of the limitation to that right;
  • the nature and extent of the limitation;
  • the relationship between the limitation and its purpose; and
  • any less restrictive means reasonably available to achieve the purpose of the limitations.

Our mentors, David Manne and Emily Howie, offered insight about how the laws might be applied by a court, urging us to consider international jurisprudence on the scope of particular rights and human rights principles. So while this exercise was an imaginative one, it was grounded in legal theory and precedent, albeit from outside domestic law.

Benefits of participating

Frank Aloe: I don’t think that I can rate the benefits of this experience highly enough. It provided us the unique opportunity to contribute to a national conversation, and have that contribution be recognised and supported by leaders in the field. All of which seemed well beyond our reach as law students at the beginning of this project.

The project has re-shaped my understanding of my ability to create tangible outcomes through the law. I think that these sorts of projects are genuinely transformative and I recommend anyone with the chance to get involved in a similar opportunity to do so.

Helen Metzger:  In summary, the project was an exercise in: drafting legislation, networking, application of law, human rights, political responsiveness to the law, judicial reasoning, and an extreme process of teamwork. To work with selected students is the best group work one can hope for. Our ability to recognise each other’s strengths and encourage them while working together was great. I came away from the project with absolutely hands-on experience – working with industry professionals, guided by extraordinary mentors, legal skills sharpened and inspired. As with my other placement with the CIJ, the project has changed the direction of my JD and aspirations. I can’t recommend the placements through CIJ highly enough. To be able to properly experience the legal sector before one is graduated is a gift and an opportunity.

Effectively, the Charter asks for transparency, justification, and evidence-based laws. What struck me in the project was how simple that is, and how resistant politics and the public can be to that. For some people, it seems ‘human rights’ are a dirty word – deeply ‘unpopular’ as a concept, despite them being what most of us would expect makes the basis for a valuable and happy life.

Luke Fowler: I was quite surprised at how the introduction of the Charter would not only improve human rights protections for Australians, but also how it would improve transparency and accountability in the law making process. This, in turn would allow the Australian public a clearer understanding of the laws that are being enacted in their name.

This project has shown me that the introduction of a Charter would lead to clearer and less ambiguous laws, which in turn would make it easier for the Courts and public authorities to interpret and administer the law, leading to fewer disputes and fewer lengthy and expensive court cases.

Brigette Rose:   Launching the Charter was fantastic. Professor Gillian Triggs, President of the Human Rights Commission, explained how vital a Charter is to Australia. She had everyone at the launch imagine Australia with explicit human rights protections, rather than an Australia that has to be informed by another country, PNG, that Australia’s asylum seeker detention policies are illegal and breach the right to liberty.

The launch of our federal Charter offered an opportunity to celebrate the wins of the current Victorian Charter, and to emphasise the difference that could be made to everyday Australians if a federal Charter was in place. It was a great day to both congratulate ourselves on the report that we produced, and to strengthen our resolve about why this and other pieces of work like it are so important.

Veronica Snip:  Participating in this project was a really worthwhile experience, way beyond the research and academic skills I gained. This was group work on steroids, and taught me to communicate, debate, assert myself and acquiesce when need be. Not only have we been able to make our mark on the human rights landscape in this country, but we were guided there by inspiring and brilliant leaders in the field. This report was a gargantuan task that we somehow managed to complete, and now makes me sound pretty impressive when I casually slip it into everyday conversation with friends/relatives/strangers. I loved going to the CIJ every week and debating human rights with 4 fellow law nerds and have taken much more out of this than I put in.

The report was launched by Emeritus Professor Gillian Triggs on Friday 12 May.  You can listen to a podcast of the launch here.

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Left to right back:  Anna Howard, Helen Metzger, Brigette Rose, Luke Fowler, Veronica Snip, Frank Aloe, Gillian Triggs, Rob Hulls.  Front:  David Manne, Hugh de Kretser.

 

Family violence: responding to the next generation

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PIPA Forum panel members left to right: Jo Howard, Kildonan, Lily Anderson, Step Up Program USA, The Hon Gavin Jennings, Special Minister of State, Jamie Marloo Thomas, Wayapa Wuurrk Aboriginal Wellness Foundation, Elizabeth Grawe, parent with direct experience of AVITH , Elena Campbell and Rob Hulls.
by Elena Campbell, Associate Director, Research, Advocacy and Policy, CIJ

Amidst the array of family violence reform across Australia, how does an issue like adolescent family violence rate? Is it really something on which we can afford to focus, when we already have so much work on our policy plates?

Far from peripheral, adolescent violence in the home (AVITH) is a very real issue for many working in and around the broader response to family violence. Certainly, throughout the development of the CIJ’s 2015 report, Opportunities for early intervention: bringing perpetrators of family violence into view, the CIJ heard consistently that (a) adolescent violence was a huge concern; (b) there was no considered response to it and (c) there was no opportunity to shape such a response.

Accordingly, the CIJ decided to develop a project which created this opportunity – the chance not only to understand the challenge, but to work towards a considered solution. In collaboration with colleagues across the sector and in other jurisdictions, the CIJ applied for and received funding under the Perpetrator Interventions Stream from ANROWS, Australia’s National Research Organisation for Women’s Safety.

The result is the PIPA Project, or Positive Interventions for Perpetrators of Adolescent violence in the home (AVITH). This two year project involves dual strands – the first conducting research across Victoria, Tasmania and Western Australia which will enable us to understand the prevalence and contributing factors, as well as the kinds of responses that it currently receives in different legislative and regulatory regimes. This includes the Tasmanian regime, which currently only recognizes intimate partner violence. Meanwhile, the second strand focuses on the relevant recommendations of the Victorian Royal Commission into Family Violence – their implementation and relevant barriers; and the opportunities which need to be seized in order to work towards a considered response.

As part of this project, the CIJ recently hosted a public forum at the State Library of Victoria, the details of which can be found in our newsletter, with a link to the audio provided here. Over 100 people turned out on a freezing Melbourne night and heard this expert and diverse panel paint a vivid picture of what Special Minister Gavin Jennings remarked at the time was ‘as complex a challenge as you can imagine’.

This complexity derives in part from the fact that the primary victims of violence in this context are also the primary carers for those using the violence. What’s more, these carers are not only responsible for the welfare of the adolescent using violence, but for the welfare of their other children. In this equation, it is not surprising to hear that parents put their own welfare last – only resorting to calling the police after months or even years of violent behavior – simply because they want the violence to stop.

What happens in this situation, though? What prompts a family to call the police? What happens when they do? Answers to these questions remain regrettably elusive across jurisdictions. Police face tough judgment calls when they respond to an incident in which a parent does not want their child arrested. If the police do remove the child, there are few places to take him/her, and often the police response may involve simply sitting at the police station ringing around relatives just to find somewhere to place the child for the night.

If the child has committed chargeable offences, bail or diversionary options may not be available simply because the family does not feel that it is safe to have the young person home. This means being remanded and exposed to the criminogenic environment of custody. If children attend court as respondents to an intervention order, the programs which are available to help them and their family are confined to specific locations, with Magistrates also unable to mandate attendance for a cohort which is already incredibly difficult to engage.

Back home and feeling isolated and often ashamed, meanwhile, parents can now access more support than in the past, but support for their other children appears sorely lacking, as are opportunities for simple respite – a chance for families to catch their breath before their challenging adolescent returns home.

Without a doubt, implementation of the relevant Royal Commission recommendations will make a difference in Victoria – recommendations which include expansion of behavior change programs, increases in accommodation, support for victims and perpetrators at court, and expansion of diversion amongst others. These will also function as an example for other jurisdictions.

What the PIPA Project aims to do, however, is anticipate how these will work in practice, what the gaps are and how they can be more effectively linked. Using the findings from the first strand, the Project will feed this expanding evidence about prevalence and contributing factors up to senior levels and keep the issue of AVITH firmly on the policy radar.

In doing so the project aims to remind us that, amidst all the current policy frenzy, we have an obligation to respond to the next generation – adolescents who, in many cases may be using violence against their families simple because that is what they have learned; adolescents who are experiencing other challenges and who have not received appropriate support; adolescents who may well hit the service system as more entrenched offenders, unless we learn how to step in earlier and effectively respond.

Court of Appeal Reflection

 

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RMIT JD and VU law students with Court of Appeal Associates and other members of the legal profession
By David Gilbert, RMIT JD student

From the moment we entered the Supreme Court of Appeal, it was clear that the judges and staff saw our attendance as an opportunity to invest in the future direction of the legal profession. The internship was extremely well organised and structured providing a comprehensive insight into the machinations of the Supreme Court of Appeal and the Trials Division. A significant amount of time was afforded to us by judges and staff. Their commitment to ensuring that the internship was a rewarding experience was inspirational in the sense that it demonstrated the caring and mentoring culture of the legal profession.

Exposure to the diverse range of hearings that took place over the four days was invaluable. Two of the three hearings were criminal matters and the other was civil. The manner in which the appeals were argued by both parties was of particular interest, especially how the barristers interacted with the three judges at the bench. It was clear that the Supreme Court of Appeal judges were well prepared to hear the matters coming before them, to the point where it appeared they were alert to the strategies barristers were likely to deploy in their submissions. This was reassuring and demonstrated the integrity of the judicial process.

The most valuable lesson from this student’s perspective was that it is pointless trying to sell a dodgy car to a Supreme Court judge. The barristers in each matter put their best arguments forward dutifully representing their clients. The clarity of logical thought coming from the bench was strikingly apparent, leaving little scope for barristers to make headway by means of flamboyant advocacy skills supported by questionable legal principles or the cherry picking of facts.

The internship was inspiring, commanding all the respect the Court deserves.

Accessing justice through technology

Technology and the Law

by Mark Madden, Deputy Director, RMIT Centre for Innovative Justice

I have a confession to make. I am not a lawyer — but have worked with and around lawyers and justice systems for a fair bit of my working life. I have unmet legal need — after being knocked off my bike last year, I am writing off the costs to replace my bike because the time and process required to take the person to a tribunal to get justice makes it simply not worth it.

I am also passionate about building a fairer community and — and I am grateful for those who work in the legal assistance sector and lawyers who do pro bono to help get people justice.

I am sceptical about the ‘innovation’ agenda — sceptical, not cynical — but I am open to the great potential of innovation as a process, particularly in the justice space, and I have been involved in some major technology ‘disasters’, and have learned a few lessons as a result.

Today, I want to start a conversation about innovation and what it means; talk about the potential to deliver greater access to justice and maybe even end the need for pro-bono lawyers; and suggest that the future of law and justice is ‘T-shaped’ or multi-disciplinary and invite you to become involved if you aren’t already.

A basic definition of innovation is a ‘method, idea or product that is new or perceived to be new’. It is important to add ‘perceived’ because sometimes in the innovation space, what was old can be new again! It is important to understand that innovation is a process — and that the quality of the process will be a key factor in the success of the innovation.

We often think of innovation as a product or a piece of ‘hard technology’, usually IT, rather than a new idea or new way of doing or looking at things. We also often think of technology in terms of products, apps for example, when ‘technology’ can be a process. Indeed, at the Centre, our approach to innovation is informed by a method or process, or ‘soft technology’, called ‘human-centred’ or ‘impact-centred’ design, which puts the needs of users at the centre of the process.

What is it that they need, whether as victim or perpetrator, as applicant and respondent or simply someone who just wants an issue resolved, even before its gets into the formal system? Restorative justice, for example, is a method or process or ‘soft-technology’, as is therapeutic jurisprudence and multi-disciplinary practice. It is arguable that ‘adversarial justice’ is ‘old technology’, unsuited to many areas of justice including sexual assault.

This ‘user-centred’ approach can deliver new and challenging insights: in the UK a few years ago they took a user-centred approach to produce a digital map of what they thought was their justice system.

A key outcome was that the justice system was not by any definition a system at all.

That was and remains a powerful insight if you are serious about the task of improving or indeed creating a genuine justice system and delivering greater access to justice.

What is innovation: the available technology?

When it comes to ‘hard technology’, however, there is plenty out there that can be and is currently being used in the justice sector, from mobile phones to artificial intelligence and machine learning. If you have a modern mobile phone with a virtual assistant you have both.

Many of you may have heard about ROSS, based on IBM’s Watson artificial intelligence platform, sometimes called the world’s first robot lawyer. Indeed, if you are a user of e-bay, either as a buyer or seller, and have had a dispute, your dispute has essentially been resolved by similar technology. This technology allows e-bay to resolve millions of disputes across the globe every year. You may also be aware of the use of so-called ‘chat-bots’ to help people deal with a range of issues from parking fines to applications for asylum.

However, this technology is only as good as the process of innovation that has influenced its design and deployment.

Access to justice, meeting unmet legal need

My interest in innovation in the justice sector is not driven by the need to make law firms more profitable or predict the likelihood of particular judges making particular decisions in particular cases. It is motivated by the desire to improve access to justice for those who currently have little or no access.

We know from the NSW Law and Justice Foundation Report of 2012 that there is a huge unmet legal demand in Australia; that legal problems are widespread and impact on many other areas of peoples’ lives.

We also know that a sizeable proportion of people take no action to resolve their legal problems and consequently achieve poor outcomes; that most people who seek advice do not consult legal advisers, and if they can resolve their legal problems, they do so outside the justice sector — perhaps, reflecting the comments I regularly hear from lawyers that you should do everything you can to avoid going to court!

We also know the criminal justice sector is under great stress and strain, with growing demand, limited resources and longer waiting times.

In my view, innovative thinking that drives the smart deployment of ‘hard technology’ has the potential to dramatically improve this situation, with some important caveats, which I will come to later.

For example, in civil justice, a report on OnLine Dispute Resolution by HiiL Innovating Justice based in The Hague, suggests that the clever use of ODR makes the promise of 100% access to justice possible. The report says ODR has the potential to solve the internal dilemma of courts (and governments) that goes something like this — if we offer more effective and fair procedures, we will be overburdened with cases for which we have no funds.

A structured and intuitive ODR process can help the vast majority of people resolve their own disputes and be costed in such a way that most litigants can afford the necessary fees, as well as enable greater co-operation between courts and tribunals.

And while it may change the role of lawyers — and indeed potentially make their work more interesting — it won’t necessarily change the need for lawyers, and it opens up a whole new — and affordable — legal services market. Imagine that.

An ODR court is underway in British Columbia, the UK is moving in this direction and the recent Victorian report on Access to Justice canvasses ODR. Digital technology is also already transforming our courts in other ways, which I haven’t gotten time to go into here.

However, this is where my scepticism, and the caveats, comes in.

This ‘hard technology’ has great potential to improve access to justice, but the effects will be limited it we don’t take the opportunity to deploy ‘soft technology’ like human-centred, or ‘impact-centred’ design to see the sector with fresh eyes, seek the views of users and take the opportunity to re-think and potentially re-create a system for the 21st century.

If we don’t do this — as Sir Ernest Ryder (President of Tribunals in England and Wales) has said, we simply risk fossilising old and out-dated processes and practices in a layer of ‘hard technology’. 

The existing approach and solutions has the potential to be very expensive and therefore unlikely to be embraced by governments. If we don’t take this opportunity, to rethink and redesign, if the solutions are not scalable and if it outcome is not going to be embraced or responded to by users’ (because they weren’t involved) then it is unlikely to succeed.

So governments, courts and organisations in the justice sector need to take the opportunity to rethink and redesign the delivery of justice — and their own internal systems — from the users’ perspective — from the laws and rules we created to the processes we support and fund — and then decide what solution will deliver better outcomes, which surely must be greater access to justice.

And in doing so, they need to invite new partners from outside, including from the innovation, technology and particularly the design communities — as well as their ‘clients’— to help them and jointly start to think genuinely outside the box.

This process of ‘co-design’ may have to be pro-bono, of course, — at the start!

T-shape justice reform

In short, justice reform needs to be multi-disciplinary, or ‘T-shaped’.

Two years ago, the Centre embarked on the Access to Justice through Technology stream (A2JTC) of RMIT’s Fastrack Innovation Program with the support of Victoria Legal Aid and the Federation of Community Legal Centres.

This is a program where the best and brightest students from across the University are given the opportunity to tackle an access to justice issue. While mentors from the legal assistance sector support the students, there were doubts at the start about whether it would work.  And, for good reason. We would be asking undergraduate students in teams of three, with no legal background, to use their design thinking skills and the skills and knowledge from their various disciplines to tackle complex social and legal issues. And to do it in 13 weeks!

This was no theoretical exercise. Their solutions had to be desirable, feasible and viable.

The outcomes were beyond expectation. The mentors were amazed by how quickly the students grasped the issues and just as importantly challenged the way they had thought about the issues.

Two of the projects on family violence were sent for consideration to those implementing the Family Violence Royal Commission and another two, addressing fines and infringements we hope to get to the market, although finding the resources in the sector to do this is another major challenge.

The solutions in the 2016 program were just as impressive with challenges including a solution to end the referral roundabout in the sector but track unmet legal demand in real time, provide legal education and advice in visual form for CALD communities,and helping to prevent young people being exploited at work.

I realised after the first year that we had created what has been referred to as T-shaped justice reform.

That is, the skills and knowledge of the teams combined deep knowledge of an area (represented by the vertical) with cross-disciplinary thinking (represented by the horizontal). I think this is the way of the future, and the lawyers and the organisations who can combine these, either internally or by co-opting and embracing others are also the lawyers and organisations of the future.

Conclusion

This brings me back to an interesting point that emerged during a series of discussions I had last year around design, technology and access to justice and in particular a Dutch online dispute resolution system, called Rechtwijzer.

The system development was informed by design thinking. Despite the fact that it was ‘humanising’ dispute resolution by empowering people to resolve their own disputes — it was in some instances referred to negatively as a ‘robot-law’.

However, as one participant reflected later ‘what could be more robotic than the way we lawyers currently work in a system that for most people does not compute.’

It is an interesting idea that good design coupled with the right ‘hard technology’ could help us bring more of the human element into our justice sector and deliver greater access to justice and indeed create a real system.

It is an idea or innovation worth pursuing, and you can start the journey, by walking a mile in the shoes of your clients or users of the justice sector by asking simple questions, ‘what are your needs? What was your experience?’ You can also think about how much of what you do is administrative and repetitive and takes you away from what you would prefer to be doing.

For centuries, justice has resisted or at least failed to embrace change. It has fought to keep pilot programs at the periphery and to insist that this is the way it has always been done.   Today, with technological innovations there is real potential to address access to justice as never before.  The process is challenging and rewarding but if we don’t take the opportunity to rethink, reshape and innovate, the header image accompanying this blog may be the future we face.

A crop of solutions

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The whole Access to Justice crew

The second year of the Access to Justice stream of the Fastrack Innovation Program has produced a crop of potential design and technology solutions to improve service delivery across the legal assistance sector, tackle exploitation in the workplace and help those in financial hardship avoid utilities disconnections.  Listed below are the innovative solutions pitched to the judges and audience on Pitch Night:

  • Handover is a tool for CLCs that streamlines the referral process and helps connect people to the services they need by automating the ‘referral roundabout’. It predicts appropriate referrals based on client details and case notes. Handover tracks the progress of each referral and captures this data at each touchpoint. Aggregation of this data presents stakeholders with a clear picture of unmet legal needs.
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Handover members Loy Rao, Jordan Fenton and Leea Johnston pitching their idea

  • Storyboard is an online platform that houses education modules that CLC lawyers can go through with their clients to best explain different legal issues. The system will have a comprehensive library of searchable visual modules to communicate complex legal concepts to clients in their native language and cultural context. The modules will be developed in collaboration with key members of the migrant communities and will be used as supplementary tools with consultations between CLC lawyers and clients.
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Storyboard members Callum Fogarty, Madeleine Buchner and Harjot Minhas pitching their idea
  • WorkMate is an automated texting service that follows a young person on their journey when they start their first job. It provides: tailored text messages, timed when they are most needed and appropriate, support to rural and metro populations, pre-emptive and preventative support for young workers, and instantaneous referral to services that are applicable and available.
  • Round-Up Power-Up is a platform for fundraising where bill payers are given the option to round up their utility bills to the nearest dollar, contributing the cents towards a fund to be utilised to assist families facing financial hardship to overcome their utility debt and avoid disconnection.
  • CourtPrep is a program that provides first time summary offenders with the information, materials (and training) they need to arrive at court prepared to engage with the judicial process.
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CourtPrep members Rey Takeshima and Bridget Dunne

Just457 is a web-platform that educates 457 visa holders on essential information about their rights at work and connects them to free, confidential legal advice through the hook of a job board specific to 457 visa holders. The platform also provides essential information to employers about their obligations, as well as an opportunity to advertise positions directly to a willing market.

  • EDA (or Energy Debt Assistant) is a chatbot (a computer program designed to simulate a conversation with human users) that connects indebted consumers with relevant assistance including not just financial support but also advice and guidance to help mitigate their energy debt
  • Where Are You (WAY) is a web-based platform that will facilitate access to all services related, but not necessarily limited to, young people’s interactions with the justice system in one location. This will allow young people, the key users of the service, to efficiently and accurately identify the most accurate and relevant services to assist them.

The award winners for 2016 were Handover and Storyboard. The challenge now is to introduce the these solutions into the legal assistance sector. Thanks again to VLA, the FCLC, our mentors and coaches and industry partners (Deloitte, isobar, Seed Digital, the Difference Incubator) and of course, Associate Professor, David Gilbert, Professor Aaron Smith and Sandra Arico.

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Handover winners with Pete Williams, Chief Edge Officer, Deloitte; David Gilbert, Associate Professor, RMIT; Serina McDuff, Executive Officer, FCLC ; Bevan Warner, Managing Director, Victoria Legal Aid and Rob Hulls, CIJ Director.

My week at the Fair Work Commission

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RMIT JD Students Olivia Dean and Jack Faine
By Jack Faine, RMIT JD student.

Having spent a semester studying Labour Law I was looking forward to the week at the Fair Work Commission. Like other placement opportunities throughout my degree, the FWC placement brought my understanding of the law in to the real world. It coloured between the lines of my knowledge, giving meaning and practical understanding to the legislation I’d spent the last few months trying to get my head around.

The Fair Work Commission is immense. The first day we spent amongst the Registry learning about the the diligence of the team in reviewing the Modern Awards, the team analysing every EBA to assess whether employees are indeed ‘better-off-overall’ under the new agreements, and the team that produce the bench books. The enthusiasm of the young staff working in these teams has definitely sparked my interest in a job at the FWC after graduation.

The rest of our week was spent alongside Commissioners and their Associates hearing all manner of matters – ranging from a mediated general protections matter from a local Fish ‘n’ Chip shop, to a mediation between parties for breach of an EBA clause, to a two day unfair dismissal hearing involving cross-examinations and impressive advocates from both sides. After this we spent a morning with mediators who brought a delicate diplomatic touch to their job assisting negotiations between parties in unfair dismissals and general protections matters.

Both Olivia and I appreciated the time and effort put in by everyone at the FWC. They ensured that we were constantly exposed to different components of the FWC, and we were never short of people to sit down with and run through questions.

The CIJ placement opportunities are fantastic as you are exposed to professionals within different practice areas. I have learnt a great deal through conversations, questions, watching and just generally soaking up the realities of the legal profession.