EVALUATION OF THE REMOTE JP MAGISTRATES COURT PROGRAM FINAL REPORT Chris Cunneen, Fiona Allison, Heron Loban, Garth Luke and Kate Munro The Cairns Institute, James Cook University. October 2010 TABLE OF CONTENTS EXECUTIVE SUMMARY CHAPTER ONE INTRODUCTION AND BACKGROUND 1.1 Introduction and Research Questions 1.2 Structure of this Report 1.3 Methodology 1.3.1 Legal Research 1.3.2 Qualitative Data 1.3.3 Quantitative Data 1.4 Literature Review CHAPTER 2 DATA ON THE JP COURTS 2.1 The Data Sets 2.2 All Matters Heard in the JP Courts 2.3 Final Appearances in the JP Courts 2.4 Sentencing in the JP Courts 2.4.1 The Specific Use of Aboriginal Council By-Laws 2.4.2 JP Courts without Council By-Laws 2.4.3 Penalties Imposed by the JP Courts 2.4.4 Ex Parte Matters in the JP Courts 2.5 Applications Heard in the JP Courts 2.6 Recidivism and the JP Courts 2.7 Key Points CHAPTER 3 SUPPORT FOR THE JP COURTS 3.1 Building Partnerships, Providing Alternatives and Building Community Capacity 3.2 A Cultural Way of Doing Justice 3.3 Taking Responsibility 3.4 Key Points CHAPTER 4 INCREASING THE NUMBER OF ACTIVE JP MAGISTRATES 4.1 The need for increased frequency of training to recruit JP magistrates 4.1.1 No available JPs to convene JP Court 4.1.2 Loss of commitment and support for the program 4.1.3 Conflict of interest 4.2 JP Magistrates Training 4.3 The need for increased support and training for qualified JP magistrates 4.3.1 Problems with retention of JP magistrates Page | 2 4.3.2 Challenges of the role and other issues 4.3.3 Increased in-service training and support 4.3.4 The Need for Increased Resources 4.4 Focus upon Indigenous JPs in recruitment 4.5 Updated list of JP magistrates 4.6 Key Points CHAPTER 5 REMOVING BARRIERS TO RECRUITMENT OF JP MAGISTRATES 5.1 Criminal convictions as a significant barrier 5.2 Current disqualification provisions 5.2.1 Disqualification under the JP Act 5.2.2 Spent Convictions 5.2.3 Application of disqualification provisions to Aboriginal and Torres Strait Islander communities 5.3 Review of the provisions 5.3.1 Victorian Bail Justice 5.3.2 Blue Card 5.3.3 Family Responsibility Commission’s Local Commissioners 5.4 Eligibility criteria for JP Magistrates on Indigenous communities 5.4.1 Amending the Rehabilitation of Offenders Act 5.4.2 Amending the JP Act 5.5 Key Points CHAPTER 6 REMUNERATION FOR JP MAGISTRATES 6.1 Current provisions for payment of a sitting fee 6.2 JPs employed by government 6.3 Unemployed JPs or JPs employed by non-government organisations 6.4 Increasing the sitting fee payable 6.5 Key Points CHAPTER 7 INCREASED AWARENESS AND SUPPORT FOR JP COURTS 7.1 The Importance of community support for JP Courts 7.2 Lack of community awareness of and engagement in the program 7.3 Strategies to improve community support for the program 7.4 Increased awareness and support from service providers 7.4.1 Magistrates and the JP Court program 7.5 The need for a court users forum 7.6 Key Points CHAPTER 8 JP COURT WORKLOAD AND INCREASING REFERRALS 8.1 Impact upon Magistrates Court workloads Page | 3 8.2 Improving QPS referral mechanisms 8.3 The Need for Referral Guidelines 8.4 Key Points CHAPTER 9 THE LEGAL RIGHTS OF THOSE APPEARING IN JP COURTS 9.1 ATSILS representation and the rights of defendants 9.2 Access to Legal Assistance and Advice 9.3 Family Violence Legal Service Providers 9.4 Key Points CHAPTER 10 THE LEGISLATIVE SCOPE OF JP COURTS 10.1 Adequacy of the current legislative scope of JP Courts 10.2 Council By-Laws and JP Courts 10.2.1 Support for and usage of by-laws 10.1.2 Perceived benefits of using by-laws 10.1.3 Providing support for use of by-laws in JP Courts 10.3 Current sentencing powers 10.4 Improving the scope of sentencing outcomes 10.5 Inconsistency and discretion in JP Court sentencing 10.6 The need for sentencing guidelines for JP Courts 10.7 Key Points CHAPTER 11 ADMINISTRATIVE SUPPORT FOR JP COURT SESSIONS 11.1 Current problems with the administration of JP Court sittings 11.2 The Need for a JP Court Clerk 11.3 Options to improve support during court sittings 11.4 Key Points BIBLIOGRAPHY APPENDICES Page | 4 EXECUTIVE SUMMARY This report presents key findings and recommendations developed as part of an independent evaluation of Queensland’s Remote Justices of the Peace (Magistrates Court) Program (JP Court program). The evaluation has been conducted by researchers at the Cairns Institute, James Cook University. The Department of Justice and Attorney General (Qld) (DJAG) commissioned the evaluation. Data on JP Courts and Their Sentences (Chapter 2) Indigenous JP Courts dealt with 5210 matters, including bail, remand, committals, adjournments, etc over the three year period 2007-2009. Half these matters (2612) involved sentencing by the JP Courts. The majority of sentencing matters derived from a few courts: Kowanyama (30%) and Mornington Island (29%). Overall 94% of sentenced matters were in five courts (Kowanyama, Mornington Island, Woorabinda, Aurukun and Cherbourg). Gender is an important consideration in the work of the JP Courts: the majority of sentenced matters involved Indigenous women (57%), and this proportion was greater in JP Courts using by- laws. Council by-laws accounted for 42.1% of all sentenced matters. The Liquor Act and the Summary Offences Act accounted for 19.3% and 17.6% of sentenced matters respectively. Communities with by-laws (Kowanyama, Woorabinda and Cherbourg) rely heavily on by- law offences for the JP Courts. School attendance is a major by-law offence, particularly in Kowanyama and Woorabinda. Some 71.7% of penalties imposed by the JP courts involved a monetary fine. Nearly 70% of fines were between $100 and $500. A further 12.4% of fines were over $500. Some 26.2% of sentencing matters were dealt with ex parte. There were 154 applications for orders, 92% involved applications for domestic violence orders. Analysis of re-offending showed there was no difference in the rate of offending before and after JP court intervention. However the conclusions that can be drawn from these results are inconclusive given the absence of a control group, and the short pre and post test period. Recommendation 1 It is recommended that DJAG develop separate identifiers within QWIC to differentiate the activities of JP magistrates and JP (Quals) conducting bail courts, and that a database be developed to identify the JPs sitting in each court for the purposes of training and support. Support for the JP Courts (Chapter 3) There is widespread support for the continued operation of the JP Court program. In terms of overarching program objectives, the program works best as an alternative to mainstream justice and in building community capacity to own local solutions to offending within communities. The program has been less successful in building partnerships. Page | 5 The general support for the JP Court program is often based on its potential to lead to positive outcomes, rather than always due to tangible benefits delivered to date. Whilst JP Courts should be retained, more work is required to ensure that the program can work at maximum effectiveness and realise its great potential - on those communities where it is currently functioning and, with sufficient capacity developed, on communities where it has yet to be formally established. Page | 6 Recommendation 2 It is recommended that the JP Court program be retained and ultimately expanded to other communities. However, prior to any expansion of the program, it needs to better supported in those communities where it has been operating. Increasing the numbers of JP magistrates (Chapter 4) A fundamental issue impacting upon the program’s immediate and longer-term capacity is the lack of JP magistrates available to constitute JP Court. Problems include potential loss of commitment to the program by JPs and other stakeholders. In more than one instance a functioning JP Court has ceased to operate, at least in the short term, due to a shortage of JP magistrates. Initial JP training provided by DJAG is not sufficiently frequent to build and maintain JP magistrate numbers. Ideally, there should be enough JP magistrates (with a focus upon Indigenous magistrates) available to participate in JP Court on a rotational, rostered basis. Further, there are significant problems with retention of JP magistrates. Problems relevant to recruitment and retention include lack of ongoing DJAG training sessions for all JP magistrates; minimal support; the need for updated training materials and lists of qualified JPs on Indigenous communities; and poor resourcing of the Courts Innovation Directorate as administrators of the program. More financial and other resources are required to address these issues and thereby build program capacity. Recommendation 3 It is recommended that DJAG provide for increased frequency of JP training for individuals on Aboriginal and Torres Strait Islander communities seeking to qualify as JP Magistrates as well as more frequent in-service training and support. Training should be provided in community as well as centrally. Recommendation 4 It is recommended that DJAG increase resources provided to the Courts Innovation Directorate to enable increased capacity to deliver training and ongoing support though the appointment of additional training and support officers and an increased budget for training and community education. To administer the program more effectively there is also a need for improved DJAG record keeping of current, qualified JP magistrates.