Justice

Archaic & self-serving court processes are the heart of the problem and need fundamental reform

Judges seem more concerned with pedantic adherence to their outdated & inefficient processes, documentation rules & protocols than with making common-sense good decisions for society.  The court system's rules generate more work for itself & lawyers - to the detriment of everyone else - by artificially segregating related "matters" into separate "hearings", often in different courts, and then excluding relevant information from each matter on technical-jurisdictional grounds rather than adopting an efficient, holistic approach to the overall situation (for example, separating property, parenting & DV / AVO matters in family breakdowns, unlike in New Zealand where these related matters are considered together).

As broken families wait, the system generates yet more work for itself with "interim hearings" that cost everyone time & money but are mainly preoccupied with bureaucratic process issues and are hamstrung by the courts' own rules preventing judges making any "finding' on a disputed matter - or a consequential decision/order that might actually help the family - until a "final hearing".  So by the time anyone gets to a final hearing it's too late as the children have grown up and already been psychologically damaged (making the current legal presumption of equal shared parental responsibility meaningless in practice).  Nothing seems to be enforced anyway; for example if a mother obstructs a father's contact with his children ("parental alienation", which is a common form of DV), instead of the Police arresting her for breaking Family Court orders, the father has to apply, wait for, and of course pay lawyers for a "contravention order" hearing, and by the time that happens the issue is history and often ignored. This is clearly a system that is more concerned with generating work for itself than acting in the best interests of children.

Then when it comes to actually considering the issues of substance, Judges actively suppress relevant, anecdotal or contextual information & drag things out through extended court processes - putting their heads in the sand to deny the fact we now live in an educated & connected society where jury members can & will see information on the internet & other media sources and are quite capable of deciding for themselves whether to believe it! (See also this farce of a headline on this high-profile Australian case reported all around the world except in Australia.)  It seems the purpose of the court rules on admissible evidence is to make life easy for the judge (less to read) and to force people to use lawyers who know how to word things in a way that will allow evidence to be accepted.  So dated, incomprehensible and unnecessary court rules & 'legal-ese' language create prohibitive barriers to self-representation, even though a lawyer intermediary will never understand or care about the underlying issues as much as their client (especially in family law cases).

And the system also creates more work for lawyers and denies justice to those who self-represent, because lazy judges rarely do anything to actively find out information on a case, nor even to determine what laws should be considered - they merely sit high and mighty at their bench and only consider what evidence and legal arguments are put to them by lawyers during proceedings (and the proceedings themselves are a pantomime, where theatrical performances by overconfident barristers seem to carry more weight than actual evidence). So this is not just a problem of the inefficiency and cost of people having to use lawyers, because a justice system that's inaccessible to the common man is not one that wants to help the common man (or woman).

Poor accountability breeds inefficiency and corruption

Judges routinely show little more than contempt for other people's time and money, insisting on court appearances for trivial procedural matters (like a "mention", when all the judge does is look at his/her diary and decide when he'll actually properly consider the issues), and in a recent astounding case, making parties listen to a judgment for 17 hours over 4 days!  Sure he got "rebuked" by his superiors ("Tut tut, naughty boy"), but after multiple similar incidents, why is he still in such a position of authority?  The astounding degree of laziness & contempt for the community that is required to seriously risk losing your job as a judge is well-demonstrated by this case of a judge routinely taking 1-3 years to deliver a judgment, including nearly 2 years for a 3.5 page judgment, before finally getting referred to Parliament for his removal.

Many judges lack the “objectivity” and “impartiality” they claim to hold so dear, especially in lower courts, where they are often "clearly and obviously prejudiced" (for example, against New Zealand Maoris).  Other judges are simply prejudicial bullies.  These are not simply isolated cases, and similar problems exist across the world (e.g. in USA courts too).  Fundamentally, they demonstrate what happens in systems with virtually non-existent accountability, which also further raises questions about how the system gives permanent appointments to people like this in the first place.

You would think that with practices like this, court rooms would be bursting at the seams all day and into the night. But they're not; casual observation shows their utilisation is shockingly low (& even when they seem full, they're actually just full of people queuing to be heard!).  Yet if judges got out from behind their benches and actually went into the community to do their job (or delegated others to do so), they could at least sometimes form immediate judgments based on first-hand evidence and avoid months or years of delays, costs and avoidance of justice.  And until then, the police should be empowered to enforce court orders instead of making people wait months for a contravention hearing (by which time it's too late).

But the courts are in total denial and simply demand more money for their restrictive-practices gravy-train.  Time & again they have refused to change, despite a long history of inquiries recognising the Family Court's failure to act in the genuine long-term interests of children (& other courts are little better).  Yet despite my criticisms of them, even judges can be victims of their own dysfunctional system.

Moreover, whilst the broader legal profession has, to some extent, little choice about its work practices - which are largely dictated by court rules - many lawyers and other related professions (like court psychology "experts") exploit the secrecy and dysfunctional slowness of courts to push clients through a never-ending cycle of expensive legal process, with little hope of ever achieving justice.  And those who can't afford decent lawyers (not least children) are left with second-rate legal-aid & other free court services, provided by people who generally seem to have neither the competence or concern to really help their clients (such as court mediators or "Independent Children's Lawyers" who, like judges, rely on children's expressed views – if they bother to talk to them at all – with no apparent understanding or concern for how readily even older children can be manipulated by a narcissistic, alienating parent).

Research by Arizona State University found that of 364 psychological assessments commonly used in US courts in a range of cases (from parental custody to determining a person’s sanity or their suitability for a death sentence), 60% of the tests hadn’t received generally favourable reviews of their scientific validity in widely accepted textbooks and 33% weren’t broadly accepted by psychology experts according to nine previously published reviews of the field. Subjective tests were most problematic, but judges are generally not even questioning them: Of all US state and federal court cases from 2016 to 2018, only 5% of psychological tests were challenged in court, and only a third of such challenges succeeded. Clearly judges are not qualified to do their job of assessing evidence, and moreover, neither are the psychologists — with a 2012 report finding that a fifth of psychologists who gave evidence in UK Family Court cases weren’t qualified to do so.

And as if that's not bad enough, US judges have even been selling children into private prisons.  This is what happens in secretive systems with no accountability (like the Family Court) - it attracts the worst of humankind into its disgusting hidden world. But judges think they should be beyond criticism and protect their own kind, so we can't rely on Royal Commissions when the judges running them decide not to investigate a police list of suspected high-profile pedophiles - including those currently practising in senior positions of the Australian justice/legal system - because "the pubic would lose confidence in the judiciary" (so much for the AG's claim that "no-one is above the law"). Throughout history, systems that consider themselves beyond criticism seem to inevitably slip into dysfunction & corruption.

Court inefficiencies have widespread impacts

The consequence of grossly excessive legal costs are that many people are denied justice, and some resort to other means of seeking it. For example, the #MeToo movement has resorted to the "court of public opinion" (or "trial by the mob") at least partly due to the difficulty of women achieving justice through the courts (often through an unreasonably arduous process). But it has also resulted in the unfair trashing of some people's reputations through unfounded allegations, which they are unable to deter because of the high cost of a libel hearing in court. For example, Cliff Richard incurred £3.4m in legal costs to get compensation for his unjustified invasion of privacy and tarnished public reputation, which clearly most people cannot afford. With social media now able to so rapidly & irreparably damage reputations, a free licence for trial-by-media seriously undermines the principle of innocent-until-proven-guilty, and should not be allowed (at least prior to laying charges) without good reason. The obvious solution to these sort of issues is for the judge (rather than the press or police) to decide whether each specific police investigation should remain secret (at least in the nature of its inquiry, even if public actions can't be hidden), after weighing up the potential benefits of publication in eliciting further relevant evidence &/or for genuine "public interest" (not gossip), against whether the initial evidence is robust enough to justify the risk of undeserved reputational damage. However, with the current court system this will just add even more bureaucratic process, costs and delays to what is already a bloated system. As the Guardian said back in 2012 after the scandal of NewsCorp privacy invasions, what is needed is a press "regulator - giving quick and cheap rulings on libel and privacy issues to claimants", or in other words, an efficient court!

But the problems for society go well beyond the delays, cost and injustice within the legal industry (especially in the family courts), as these failures in turn cause even bigger knock-on consequences & costs for society, such as:

• • Overwhelmed child protection workers spending excessive time on court processes instead of actually helping families, and being realistically unable to seek court orders to help the vast majority of children in need because of time & cost constraints (as well as lacking the credible authority to influence the large number of less-severe cases that could never justify the prohibitive cost of court).

  • Time-critical decisions are impossible to obtain in all but the most extreme situations, and many domestic disputes can't be resolved, even with Police intervention, because the cost of addressing issues in court can't be justified. Yet AVOs are made relatively promptly without debate – as a supposed precautionary measure – because it takes courts too long to consider the evidence and arguments (but with the consequence that Dads are commonly blocked from seeing their children based on false accusations, which ironically all too often leads to a downward spiral ending in violence & suicide).

  • The bureaucratic, inflexible & grossly-inefficient, process-driven Child Support Agency (that also needs reform), which legislation shows was only established to try & avoid the even greater inefficiency of court processes, but now contributes in no small part to parental alienation (contravening Australia's obligations as a signatory to the UN Convention on the Rights of the Child, which should be legally enforced).

  • Similarly, the "deliberately misunderstood" debate about section 18C of the Racial Discrimination Act, fails to recognise that we only have a Human Rights Commission to try & avoid the cost & inefficiency of court processes (or that an efficient court system would take into account concerns for free speech, which is protected by 18D of the same Act!).

  • The inability to trust the courts to efficiently determine a fair split of assets when a relationship ends, along with absurd de facto laws (i.e. marriage without agreement), exposes naive, trusting people to exploitation by "gold diggers", whilst the more worldly-wise feel compelled to engage lawyers in the unromantic & often obsessively detailed drafting of "pre-nup" agreements (a process that can itself create distrust & conflict, and which despite the official title of "Binding Financial Agreement", is often still challenged in court — so rather like gambling operators, you can be sure the only winners in the long run are the lawyers).  De facto laws also discourage people from sharing housing – even though they may only want to make it more affordable – and seem unnecessary now gay couples no longer have to rely on them instead of marriage (although obviously there's still a need for laws relating to parenting rights & responsibilities outside of marriage).

  • The Family Court blocking the licensing of patented intellectual property because the distribution of earnings might not be fair to the ex wife (yes, this really happens!).

  • Small businesses unable to practically protect their intellectual property rights in court against deep-pocketed thieves - thus reducing innovation and productivity growth in the economy.

  • The tax office going after relatively small amounts from individuals who can't afford to defend themselves in court, rather than taking on big tax-dodging corporations that the tax office can't afford to challenge in court.

  • Landlords mistreating tenants who don't have the time or money to take court action.

  • The hampering of investigative journalism because of the huge financial risks from potential court defamation proceedings (plus judges have a poor understanding of the industry, because they don't operate in a mixed skills team).

  • The excessive cost of armies of contract lawyers required to get private sector innovation in government services through Public Private Partnerships (PPPs), when these contracts are only really done to try and reduce the risk of even costlier court action and are otherwise disregarded in the practical operation of any successful 'partnership'.  The consequences of these legal cost barriers are less PPPs, less innovation in public services and hence poorer public services & more waste for taxpayers to fund.

  • The opportunity cost of diverting some of society's smartest people into "parasitic" legal activity, instead of more socially beneficial work.

I could go on…

I find it astounding that public debate of these matters fails to see that all these problems (& many more) are ultimately caused by our dysfunctional courts.

- it's time we tackled the source of these problems!

What we need

While there is increasing attention on artificial intelligence (AI) algorithms that could automate all aspects of legal work (from simple consumer rights matters to even quite complex judgments - see Report: artificial intelligence will cause “structural collapse” of law firms by 2030), in the short term there is huge potential to improve efficiencies just by simplifying and eliminating current archaic legal processes and using relatively simple systems to replace paper files and automate information management, administration and other mundane and laborious tasks currently undertaken by lawyers. Most critically, judges need to delegate matters that can be done by more junior staff, and only escalate matters that need more senior attention (i.e. the same as the rest of the world works!).

However, whilst a huge amount of bureaucracy can and should be eliminated immediately (with basic software systems, email etc.), governments are not very good at innovation and continuous improvement (possibly because so many politicians are useless, argumentative lawyers), and in any case, the "separation of powers" keeping the judiciary independent of government, means government has little ability to encourage greater efficiencies, other than by simply constraining funding.  So we need a more dynamic and competitive system that is responsive to community needs and constantly innovates and improves. Such a system needs to be guided by a new legislative legal framework that promotes a more balanced and less adversarial system - one that instead:

• • actively seeks to discover the truth and views all related matters and context in a single, efficient and holistic way (e.g. DV/AVOs & all family/parenting, property & child-support matters);

  • dismantles barriers to competition & self-representation (such as archaic court rules & 'legal-ese');

  • abolishes overly-­prescriptive regulations stipulating rigid court rules & processes, instead adopting a high-level "principles-based" legal framework that allows flexibility for courts to adjust to each case as warranted (for example, instead of rules preventing new evidence from being heard in an appeal, a principles-based law would focus on the desired objective of such rules and simply state that courts must ensure that any party to a dispute is not subjected to unwarranted and punitive extended litigation processes);

  • puts the welfare of kids first (which requires nothing less than replacing the current obsolete Family Court system & judicial culture with something completely new);

  • stops clogging our courts and prisons with innocent people suffering new bail laws or those guilty of minor/trivial matters like traffic offences, and instead,

  • adopts a broader perspective to sentencing that takes into account all the disastrous long-term impacts of incarceration on individuals, their children (& future generations) and the whole of society (especially for Aboriginal communities, who are disproportionately impacted by the justice system), and is followed-up with checks for families in dispute and long-term monitoring of outcomes, which can provide evidence to inform better future judgments;

  • And last but not least, offers the same human rights and access to efficient justice for all citizens of Australia!

The attached "Justice Reform Strategy" outlines how this can be achieved (& also has an appendix listing specific examples of absurd and inefficient legal/court system practices).

A version without the appendix is also at: http://openforum.com.au/justice-reform-strategy

In short, my proposed reform strategy is to licence independent private arbitration companies - chosen mutually by the two parties in dispute - to efficiently gather information & provide summary advice & recommended judgments to local courts, with subsequent reform stages then expanding the scope of these businesses to competing with local and then higher courts in the task of formally making legal judgments and considering appeals (supported by monitoring of judgment quality through levels of appeal success, in order to inform people's choice of entity for initial dispute resolution).

Also (& consistent with this) are further suggestions for:

• a 3-stage "shared parenting" process to ensure children's rights to see both their Mum & Dad are protected in a timely fashion after parental separation,

• an alternative approach to judging sexual assault cases that are not serious enough or lack sufficient evidence for a conventional criminal trial (within my broader discussion of domestic violence),

• reforming social-support/human services to address domestic violence against men, women & children based on evidence that challenges the current dominating & misleading feminist public DV narrative (which the flawed 2016 Victoria Royal Commission relied on while failing to acknowledge the fundamental problems with the court system — but what else would you expect from judges?!).

Despite the devastating consequences of the current court system, there was little attention paid to it by mainstream media (or most politicians) when I first proposed these reforms in 2016 (see this criticism of the media from the Families for Children's Rights campaign group), but some initial hope was provided by the Federal Government's 2017-18 Budget, which established a comprehensive review of the Family Law System, and also proposed to offer "Parenting Management Hearings" as an initial alternative to the Family Court.  These hearings – which were intended to start in Parramatta in 2018 – could provide a good starting point for the reforms I propose, if the system was further developed and expanded to offer parties choice of who investigates their case (and given the widespread abuse of AVOs, a fast, efficient, low-cost investigative system is absolutely essential if self-represented alleged perpetrators are prevented from cross-examining dishonest accusers, as is now the case).

The subsequent initial reforms proposed by the Government to abolish the Family Court and introduce some semblance of accountability through a new Federal Court appeal process (replacing the Family Court's iron grip on the system by managing its own appeals!), also offered the prospect of some modest efficiency improvements from reduced duplicate work (by unifying forms & procedures across the Family & Federal Circuit Courts), but of course the usual self-interested people opposed these Family Court reforms (see also here) and the self-serving Law Council also opposes the proposed Parent Management Hearings, because they just want more money to prop up their existing rort.