Access to justice research: On the way to a broader perspective
A Storgaard | Onati Socio-Legal Series Spain
December 2022
JOURNAL ARTICLE | In this paper a baseline of contemporary access to justice research is established. The baseline illustrates key features of the research field suggesting that while the field of research has become more multifaceted in the course of the last two or three decades, it is nevertheless very much dominated by law scholarship and structural analysis of legal service provision. Departing from this overview of access to justice research, five calls for future research are presented and discussed. The paper argues that future research on access to justice should: 1) reach a clearer understanding of the problem (of access to justice), 2) consider a multidisciplinary approach, 3) support and develop evidence-based policy by committing to empirical research, 4) study a wider variety of social realities and 5) look for quality.
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Child protection and youth offending: Differences in youth criminal court-involved children by dual system involvement
S Baidawi, R Ball | Children and Youth Services Review
January 2023
RESEARCH REPORT | Children who have had contact with the child protection system are over-represented in youth justice systems. This study identifies how these children (“dual system youth”) differ from other criminal court-involved youth who have not had contact with the child protection system (“justice-only youth”). The report compares socio-demographic characteristics, offending profiles and support needs of 300 dual system youth with those of a matched sample of 268 justice-only youth. Results indicated dual system youth were on average younger, more likely to be female, had more prior adjudications, current charges, and more violent offending. “Dual system youth” encompasses both “dual contact youth” (who experience non-concurrent system contact) and “dually-involved youth” (who experience concurrent system contact). Youth experiencing concurrent system contact experience greater poly-victimisation, out-of-home care placement, and more serious offending, relative to both justice-only and dual contact youth. The article argues that these findings support the need for targeted and collaborative strategies across court and youth justice systems to address such children’s unique needs.
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The use and utilitiy of administrative data in dispute and complaint resolution bodies in Victoria
H.M McDonald, J.J Kutin, T Hagland | Victoria Law Foundation
December 2022
RESEARCH REPORT | This report examines administrative data collected by dispute and complaint resolution bodies in Victoria. It follows publication of similar reports exploring the administrative data of Victoria’s legal assistance services, and courts and tribunals. The Data Mapping Project explores what civil justice administrative data is available; its accuracy and consistency; how it is currently used; and what needs to be done to improve its ability to answer access to justice questions. Together, the dispute and complaint bodies who participated in this study handled more than 230,000 disputes and complaints in 2020–21. Improved data and analysis can provide greater insight into what dispute and complaint bodies do and achieve, and the difference they make to civil justice. The report notes that there is currently substantial difficulty not only in seeing different types of users in data, but also in aggregating the types of matters handled, and outcomes achieved. The report states that without establishing some agreed classification and counting standards – for key measures such as user characteristics, matter types, and outcomes – scope for the aggregation, analysis, and use of data to support access to justice is unlikely to improve.
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Intergenerational incarceration in New South Wales: Characteristics of people in prison experiencing parental imprisonment
M Reymond, R Zeki, K Austin, J Bowman, J Galouzis, K.A. Stewart, E Sullivan | Australian Institute of Criminology
February 2023
RESEARCH REPORT| This study uses data from two state-wide surveys conducted in NSW prisons and youth justice centres in 2015 to examine the epidemiology of intergenerational incarceration. One in six (16.9%) adults in prison and over half (52.6%) of young people in youth justice centres reported that a parent had been imprisoned. For Aboriginal participants, 32.0 percent of adults and 66.4 percent of young people reported a previously incarcerated parent. Women were more than twice as likely as men to report that their mother had been in prison. Younger participants, those who had completed fewer years of schooling, and those previously in out-of-home care were more likely to report that a parent had been incarcerated. The authors conclude that the high prevalence of intergenerational incarceration in NSW correctional settings, particularly among young people in youth justice centres and Aboriginal peoples in custody, highlights the need for interventions to support parents in prison and at-risk children whose parents are incarcerated.
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Offending by young people with a disability: A NSW linkage study
S Boiteux, S Poynton | NSW Bureau of Crime Statistics and Research
January 2023
RESEARCH REPORT | This paper describes rates of offending by young people with disability, and identifies factors associated with their first contact with the youth justice system in NSW. A birth cohort of young people with disability residing in NSW was identified using State and Commonwealth information on health and disability service contacts from a large linked administrative dataset. Rates of offending were compared for young people with and without disability. Despite accounting for only 3.5% of the population, young people with disability comprised 7.7% of all young people who had at least one police caution, youth justice conference or court appearance before the age of 18 and 17.4% of those with at least one youth detention episode. On average, people with disability had their first contact with the NSW criminal justice system at an earlier age, had a higher frequency of contacts, and had a different profile of offence types compared to people without disability. For people with disability, factors such as a later age of initial contact with disability-related services, greater remoteness of residence, and frequency of child protection contact were strongly associated with the likelihood of having a police caution, youth justice conference or court appearance before the age of 18.
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People with disability and offending in NSW: Results from the National Disability Data Asset pilot
C Ringland, S Boiteux, S Poynton | NSW Bureau of Crime Statistics and Research
January 2023
RESEARCH REPORT | This research describes the proportion of with a disability in New South Wales who offend, and the proportion of offenders who have a disability, separately for young and adult offenders. The disability cohort in this study includes individuals with a broad range of intellectual, physical, and psychosocial disabilities identified by core disability services. Additional inclusion criteria were applied to capture individuals who have not accessed or were not eligible for those services and supports but may have a disability (other disability identifier group). Data were obtained for individuals in contact with the criminal justice system and/or specific disability support services between 1 January 2009 and 31 December 2018. Sixteen per cent of the disability cohort had a finalised matter (caution, youth justice conference, or court appearance) during the 10-year period; 5 per cent had a custodial episode. Limitations of this study preclude conclusions regarding the interplay of disability, victimisation and offending over the life course. The authors argue there is an urgent need for further disability focused research to identify opportunities for strengthened support and diversion for this vulnerable group.
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Formal support needs of adult victim-survivors of sexual violence
K Silk | UK Ministry of Justice
January 2023
RESEARCH REPORT | Rape and sexual violence are reported to have devastating impacts on victim-survivors’ lives. There are direct negative impacts, secondary impacts, and non-perpetrator partners, children, family and friends of the victim-survivor can experience secondary effects of trauma. This research builds on a previous paper (the End-to-End Rape Review Report) which revealed that victim-survivors are not always getting the support that they need and many feel let down by the criminal justice system. In response, this report conducts targeted research with rape victim-survivors to better understand their experiences and what they want from support services so that future provision meets need. The report presents findings on three studies, a literature review, a survey with rape and sexual violence victim-survivors, and a qualitative study involving interviews and focus groups. It presents insights into the barriers experienced and support needs.
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Statutory review of domestic violence provisions in the Residential Tenancies Act 2010
Women’s Legal Service of NSW
December 2022
REVIEW SUBMISSION | This submission follows the introduction of provisions in the Residential Tenancies Act (RTA) which aim to strengthen protections for tenants who are survivors of domestic violence and abuse. This submission presents findings of a survey created and promoted by WLS NSW, the Tenants’ Union of NSW, and Domestic Violence NSW to collect information from tenants who had ended their tenancy using a domestic violence termination notice (DVTN), and anyone who supported someone who did this. Views were sought about how the domestic violence provisions in the RTA were working. This submission highlights instances of difficulty with access to a competent person (a person authorised to provide a domestic violence declaration), highlighting the need to further expand the list to ensure greater access for priority populations, including First Nations people, people with disability, culturally and linguistically diverse communities, LGBTIQA+ communities and people living in regional, rural and remote areas.
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Inquiry into missing and murdered First Nations women and children
Senate Legal and Constitutional Affairs Committee | Law Council of Australia
January 2023
INQUIRY | The high rates of violence and murder amongst First Nations women and children require immediate and comprehensive solutions. Statistics regarding violence, injury and murder of First Nations women and children demonstrate the disparity in the experience of violence. Barriers to accessing justice are a contributing factor to this disparity. This submission utilises international human rights treaties ratified by Australia to express that Australia’s international human rights obligations should form the foundation of Australia’s response to violence against First Nations women and children.
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The Right of Indigenous Children to Cultural Safety in the Family Laws of Australia and New Zealand
H Kha, M Ratnam | UNSW Law Journal
December 2022
JOURNAL ARTICLE | Australia and New Zealand are both signatories to the United Nations Convention on the Rights of the Child, and therefore are expected to promote Indigenous cultural safety in their respective family laws under article 30. Australia has a particular obligation due to the intergenerational trauma that Indigenous Australians continue to experience as a result of colonialism. The Australian Law Reform Commission has recently reported that the Family Law Act 1975 (Cth) continues to fail to protect the right to cultural safety for Indigenous children under article 30 due to a lack of legal safeguards. Conversely, New Zealand has arguably better implemented article 30 under the Care of Children Act 2004 (NZ), which provides legal mechanisms for the ordering of cultural reports and cultural speakers. This article contends that New Zealand law better recognises Indigenous kinship in determining the child’s best interests and offers an example of law reform to Australia.
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Pre-sentence reports for Aboriginal and Torres Strait Islander people: An analysis of language and sentiment
Australian Institute of Criminology
November 2022
RESEARCH | Pre-sentence reports (PSRs) provide information to courts on an individual’s background, circumstances, risks, needs and plans. Research has found that PSRs focus heavily on risk of recidivism, while identification of prosocial cultural and community factors is limited. This study sought to describe the language and sentiment in these reports. The report is the result of a study of PSRs written for Aboriginal and/or Torres Strait Islander people sentenced by the mainstream County Court of Victoria and the Koori Court Division of the County Court of Victoria. Findings indicate that risk related words were more prevalent than words associated with strengths and culture in PSRs submitted to both courts. While the frequency of positive and negative sentiment was low in PSRs for both courts, those for the Koori Court were more positive in sentiment.
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Specialist homelessness services annual report 2021–22
Australian Institute of Health and Welfare
February 2023
REPORT | People experiencing homelessness and at risk of homelessness are among Australia’s most socially and economically disadvantaged. Governments across Australia fund a range of services to provide support to those who are experiencing homelessness or are facing housing insecurity. A specialist homelessness service (SHS) is an organisation that receives government funding to deliver accommodation related and/or personal services to people who are homeless or at risk of homelessness. This report presents data from the Specialist Homelessness Services Collective from the period 2021-22. The data provides a detailed picture of the performance of specialist homelessness services in Australia, including information about recipients and their needs. The report found that the number of clients assisted by specialist homelessness agencies showed an average annual increase of 1.4% since 2011-12. The number of older SHS clients and clients with a current mental health issue increased, as did the length of support provided to clients. In the report period, the number of females presenting homeless was higher than the number of males.
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National Anti-Racism Framework Scoping Report 2022
Australian Human Rights Commission
December 2022
SCOPING REPORT | Australia does not have a consistent and comprehensive national approach to anti-racism, with approaches differing across the federal government, states and territories. This report is the result of more than 100 consultations and 164 public submissions. Across the scoping phase of its project, the Commission found widespread support for a national anti-racism framework in Australia. In consultations, participants emphasised the importance of committed political will and adequate resourcing, genuine and comprehensive engagement with community, and accountability mechanisms to ensure the framework is a success. The framework needs a definition of racism that reflects a nuanced and intersectional understanding of racism that is community-centric. First Nations people must be central to the Framework and inform all strategies across national outcome areas. Participants also called for enhanced visibility and responses at the intersection of different forms of discrimination
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All roads lead to Rome: unconscionable and misleading or deceptive conduct in financial services law
Australian Law Reform Commission
December 2022
BACKGROUND PAPER | Over the past several decades lawmakers in Australia have undertaken the extensive enactment of provisions designed to proscribe financial service providers from engaging in misleading, deceptive or unconscionable conduct. This has resulted in an extensive regime that, at its core, is targeted at essentially the same kinds of conduct. The increase of these provisions contribute to unnecessary complexity in the law, and increases compliance and other costs. The paper proposes to strengthen some of the key legislative provisions and to remove the relatively unused and more complex lesser used provisions. The authors posit this is likely to result in a smoother legislative process.
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The importance of information acquisition to settlement services literacy for humanitarian migrants in Australia
J Abood, J Green, M.J Polonsky, K Woodward, Z Tadjoeddin, A.M.N Renzaho | PLOS One
January 2023
RESEARCH PAPER | Due to the diversity and range of services provided to humanitarian migrants during the settlement phase of migration, acquiring information across multiple service domains is intrinsic to the effective utilisation of settlement services. This qualitative study seeks to understand the impediments to humanitarian migrants’ effective utilisation of information about settlement services and to identify strategies that can be implemented to overcome these barriers. Service providers were purposively recruited from organisations funded by the Australian Government to deliver settlement programs.
The study identifies systemic barriers to information and service access and suggests different strategies and approaches to improve access to context specific key information. The language proficiency of humanitarian migrants was key to determining their ability to accessing information, hence, the authors propose that strategies to promote information dissemination are inextricably linked to strategies that promote literacy, numeracy, and language skills. The study also identifies factors that inhibit the effectiveness of the Australian settlement service provision model and emphasises the need for targeted training of mainstream referral services.
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Expressed legal need in Aotearoa: From Problems to Solutions
B Toy-Cronin, K Stewart | University of Otago, New Zealand
November 2022
RESEARCH PAPER | Solving legal problems is important as they can have a range of negative consequences on people’s lives, including economic hardship, interpersonal problems, and poor health. This report explores what the most common legal problems people in Aotearoa New Zealand seek help for and what kind of help they need to move towards solving these problems. The report uses data provided by the Citizens Advice Bureau from 2021 about expressed legal need and focuses on the most common of these problems. It then makes suggestions about how to strengthen the help that is already provided or provide new types of assistance. The top five legal problem categories—consumer; employment; rented housing; wills, trusts, estate, and care arrangements; and neighbour problems—accounted for 59.2% (n = 3,326) of the problems in the total sample.
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Are we there yet? An examination of whether Australia’s restorative justice youth conferencing programs are compatible with the core principles contained in the United Nations Convention on the Rights of the Child.
A Davis | Monash University
June 2022
THESIS | Australia has been at the forefront of the international evolution of restorative justice youth conferencing programs. While these programs have received much praise and have been expanded on a legislative basis to each state and territory, there has been no evaluation of whether they are consistent with children’s rights. This thesis examines Australia’s youth conferencing programs by reference to the four core children’s rights principles contained in the United Nations Convention on the Rights of the Child (CRC). The principles are: 1) the right to non-discrimination, 2) the right to have the best interests of the child as a primary consideration, 3) the right to life, survival, and development and 4) the right to participate and be heard. The conclusion reached is that while the youth conferencing programs reflect restorative justice principles, their current operation needs modification in order better to comply with children’s rights standards. The author proposes the ‘Child Rights Informed Conferencing’ (CRIC) Model, which involves embedding standards derived from the CRC into youth conferencing by conceptualising issues in terms of the rights of children.
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About this newsletter
JARA is a free email alert service covering recent research in the area of access to justice and legal need. JARA entries are publications identified by Foundation staff rather than the product of a systematic search or review. Foundation staff have produced the summaries based on the original publications. The summaries do not necessarily reflect the views of the authors or the Law and Justice Foundation. Your feedback is important to us. If you have any comments or suggestions please email us at publications@lawfoundation.net.au
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