Finding a better justice
The justice system has transformed dramatically and is now under pressure to keep evolving as the needs of the community continue to change.
Barrister Brian Bourke says today’s court proceedings are almost unrecognisable compared to those in his early career.
Speaking at Justice: Past, Present and Future, a panel with Magistrate Pauline Spencer for the RMIT Centre for Innovative Justice, Bourke, now 86, described the dramatic changes since he came to the bar.
Back then, he could count the number of female judges on one hand, drug-related offences were virtually non-existent and mental illness was swept under the rug.
“Mental health was not dealt with in any way at all,” he recalled.
“If a person was what we used to call ‘McNaughton mad’, you could run a trial and call evidence to show that the fellow didn’t know right from wrong.
“In those days if you got a verdict, the fellow didn’t go to jail. He was locked up at the governor’s pleasure in some institution.”
Lessons learned from the past can help lawmakers, judges and practitioners shape a better justice system for the future, says Adjuct Professor Rob Hulls, director of the Centre for Innovative Justice.
“What we can learn from the past is there is a better way of doing justice in the future,” he says.
“It’s important to understand the evolution of the law and how it’s changed over time, and once you understand it you can better understand what levers to use to change and innovate as far as the justice system is concerned.”
"An increased focus on restorative justice can be seen in today’s courts and this is set to continue into the future," says Hulls.
“I think problem-solving courts are the way of the future and I think multidisciplinary teams addressing why people have come into contact with the justice system in the first place is the way of the future,” he says.
“If I was opening a legal practice tomorrow, it wouldn’t be one that just consists of lawyers; it would be one that consists of lawyers, social workers, financial counsellors and a whole range of other disciplines that can address people’s issues in a holistic way.
“I think a proper functioning justice system has to ensure that whenever people come into contact with it, it acts as a positive intervention in their lives."
A properly functioning justice system has to ensure it acts as a positive intervention in people's lives.
Magistrate Pauline Spencer, who sits at Dandenong Magistrates Court, said steps towards rehabilitation were showing signs of alleviating the justice system’s historic reliance on imprisonment.
“There’s a real movement to align what we do with what we know works from the social sciences,” she said.
“Rehabilitation is not a one-off thing. It’s a process that comes over time. What we’re trying to do, and what the law’s now changed a bit to allow, is to bring people back over time.
“When you have people who have had no one give a crap about them their whole lives, who have been treated pretty badly even by their parents, who have developed addictions and feel pretty bad about themselves, to have a judge who says, ‘Actually I care about you enough that I’m going to stick with you, we’re going to do this and you’re going to change’ is a really powerful thing.”
When it comes to the future of a health justice system, experts agree that imprisonment isn’t always the right solution. Delivering a better kind of justice involves investigating the reasons people commit offences and finding ways to intervene.
“We all want there to be no more victims – basically that’s what we all want as a community,” Hulls says.
“The old justice system probably took the view that the way to ensure there are fewer victims is to lock more and more people up. Well, that’s just not the case.
“Modern justice is about therapeutic, problem-solving approaches, restorative approaches addressing the underlying reasons people are coming into contact with the justice system and addressing that in a holistic way.”
First published 1 November 2017.