problem solving courts qld

King, Michael --- "What Can Mainstream Courts Learn From Problem-Solving Courts?" [2007] AltLawJl 17; (2007) 32(2) Alternative Law Journal 91

What can mainstream courts learn from problem-solving courts.

MICHAEL KING [*]

Mainstream courts focus primarily on the resolution of legal problems by producing a legal outcome such as a sentence or judgment; any related problems are left to others to resolve. Problem-solving court programs are concerned with producing a legal outcome but also promote the resolution of underlying problems such as substance abuse or domestic violence. They seize upon a moment when people are open to changing dysfunctional behaviour — the crisis of coming to court — to give them the opportunity to change.

While the name ‘problem-solving court’ implies that the court resolves the problem, in reality the court is just one part — albeit an important part — of the process. Arguably, the source of change is within the participants; their attitude to change and to the process is the prime determinant of the success of any problem-solving court. Depending on the court, the judicial officer, community corrections officer, prosecutor, defence counsel, treatment and support agencies and court staff each play an important role. [1] The court is the facilitator, using therapeutic court processes to support the change process. However, problem-solving courts vary in the degree to which they apply therapeutic principles.

While more extensive research on these courts is needed, studies have found that drug courts promote participant well-being and decreased recidivism. [2] Early research supports the efficacy of domestic violence courts. [3] There is a high degree of community support for some problem-solving courts. [4] Given this evidence, the question arises whether problem-solving court principles can be used by mainstream courts to promote justice system goals such as offender rehabilitation and community respect.

This article analyses key principles underlying problem-solving court processes in the light of therapeutic jurisprudence and suggests how mainstream courts can use them. Therapeutic jurisprudence — the study of the effect of laws and legal processes on well-being — has become problem-solving courts’ underlying ethos. It suggests that findings from the behavioural sciences can inform the development of legal processes. [5] Therapeutic jurisprudence principles also underlie another court innovation: Indigenous sentencing courts. [6]

The importance of judicial interaction

In a conventional courtroom, communication is mainly between the judicial officer and counsel. The processes are formal and focus on a determination of the facts, the law and appropriate legal outcomes. Communication between judicial officer and a party and the party’s involvement in the process is limited except where the party is unrepresented. The outcome is a court order — a mechanism of control — such as an order to pay money or a sentence of a community based order or imprisonment.

A distinctive feature of problem-solving courts is the interaction between participants and the judicial officer — not simply through additional appearances, but also in the length and nature of the interaction. Commonly at the start of each appearance, the judicial officer will greet the participant and inquire as to the participant’s well-being. The judicial officer may ask how the participant’s sick parent is progressing or congratulate the participant on the recent birth of a child. The judicial officer will listen carefully and give the participant their full attention. They may ask clarifying questions or repeat some of what the participant has said back to them to show they have listened and understood. Their approach will be less formal and more conversational. They will acknowledge any feelings the participant has expressed concerning their situation.

If the participant has made progress, the judicial officer will praise them. If there are problems, the judicial officer will ask the participant what has happened and express empathy for their situation. The judicial officer may then ask the participant what they have done to resolve the matter and, if the strategy is sound, praise them for their initiative and support their ability to implement the strategy. If the strategy is problematic, the judicial officer may raise concerns and ask the participant for suggestions and/or offer suggestions for their consideration. The prosecutor and defence counsel may also contribute suggestions. The judicial officer will solicit the participant’s commitment to implement an agreed strategy and mention that at the next court appearance the judicial officer will ask the participant about their progress.

Here the judicial officer demonstrates an ethic of care towards the participant and takes a problem-solving approach. This is a cooperative and facilitative, rather than an adversarial and control-based, approach to court processes. The judicial officer takes an interest in the participant and actively involves the participant in the court process.

The literature provides good reasons for this approach. Research has found that the legal system processes can significantly affect a person’s self-respect, and their perception of and respect for the system. [7] Although research suggests that people perceive legal institutions as generally fair, that perception may change due to their experience of the system. Tyler observes that

[p]eople value the affirmation of their status by legal authorities as competent, equal, citizens and human beings, and they regard procedures as unfair if they are not consistent with that affirmation’. [8]

Litigants value participation, dignity and trust more than the neutrality of the court in assessing its fairness. [9] Litigants value telling their story to a person in authority who listens and cares about the litigant’s situation, being a part of the decision-making process and being treated with respect. Similarly, medicine increasingly recognises that a patient telling his or her story to a doctor who listens is important in developing a therapeutic relationship and in promoting healing. [10] The promotion of these values is effected through the interpersonal skills and emotional intelligence of the professionals involved. [11]

Other aspects of this judicial officer-participant interaction promote participant well-being and rehabilitation. According to Makkai and Braithwaite, praise can have ‘cognitive effects on individuals through nurturing law-abiding identities, building cognitive commitments to try harder, encouraging individuals who face adversity not to give up…and nurturing belief in oneself’. [12] A judicial officer’s support for participants’ ability to implement their plan is supporting their self-efficacy – their confidence in their ability to implement the plan. Self-efficacy impacts upon cognitive function, motivation and emotional states. [13] Thus, perceived ability to control drug use can predict who will relapse in drug treatment.

This process can have powerful effects. For example, a recent graduate of Perth Drug Court commented:

The Magistrate Courts don’t seem to care as much, your [sic] just another number. Where Drug Court is focused on helping you and thats [sic] all some people need, a bit of positive encouragement. [14]

Involving people in court processes helps to demystify them. It also promotes commitment to the processes and the values they endeavour to promote.

Self-determination and the individual

Problem-solving court judicial officers applying therapeutic jurisprudence also involve these processes in decision-making. Some of the strategies courts use include: voluntary admission to the court program; participants setting goals and strategies; and behavioural contracts between participants and the courts.

Self-determination has been found to be important in promoting health, educational, employment and rehabilitation outcomes. Its value in promoting

well-being is also emphasised in economic theories and in the political theories of philosophers such as Locke, Mill and Jefferson. According to Eastern traditions, such as the Vedic tradition, the self is the basis for action and the source of personal growth [15] Self-determination is a fundamental concept of constitutional, contract, marriage, tort, criminal and other areas of law.

Mill thought choice to be indispensable to self-development. [16] According to Mill, a decision to act engages all of an individual’s faculties in its implementation whereas acting contrary to choice injures feeling and intellect. It is a theme repeated in the literature.

Some economists see self-determination as the basis of economic well-being. Friedman attributed the significant economic growth and improvement in the United States’ living standards during the decades preceding the 1950s to the ‘initiative and drive of individuals co-operating through the free market’. [17] He constructed an economic philosophy on the basis of the ability of individuals to pursue their own interests and values freely within society in the form of voluntary cooperation and private enterprise provided they do not violate the freedoms of others. According to Sen, individuals are dynamic agents of change, able to shape their own destiny and to promote social change and well-being. [18] Economic and social development involves expanding individuals’ capabilities and opportunity to choose while involving them as active agents in the development process.

Self-determination theory explores motivation and its implications for behaviour and achievement. It asserts that ‘motivation, performance, and development will be maximised within social contexts that provide people the opportunity to satisfy their basic psychological needs for competence, relatedness and autonomy’. [19] Competence involves understanding how to achieve outcomes and self-efficacy in doing so, relatedness means stable and satisfying relationships, and autonomy is the ability to begin and govern one’s actions. Deci et al refer to research finding that self-determined motivation is linked to improved educational outcomes including educational performance, retention at school, conceptual learning and memory. [20] They stress its importance in promoting cognitive flexibility, creativity and self-esteem. Managers supporting the autonomy of their employees have been found to promote greater job satisfaction, higher performance evaluations and greater psychological adjustment. [21]

Winick’s review of findings from psychology suggests self-determination is intimately connected with personal well-being, happiness, and the ability to recognise any need for behavioural change and to implement behavioural change strategies. [22] Winick observes that choice promotes motivation, confidence, satisfaction and ‘increased opportunities to build skills necessary for successful living’. [23]

In health, patient choice in determining whether to engage in treatment promotes compliance with treatment programs. [24]

Maruna’s study found self-determination to be a significant factor in why some ex-offenders desist from offending while others continue offending. [25] Those who continued to offend did not have a vision for the future and felt powerless to alter their circumstances; those who had desisted had a vision for the future and felt confident they could achieve it. They felt in control of their lives.

Coercion and paternalism remove the locus of control from the individual to some external source, whether a court, another government body or otherwise. Implicit in such practices is the belief that a person cannot and/or should not make a particular decision impacting upon his or her own well-being. As Winick points out, these practices are likely to cause resentment and resistance to change and undermine self-efficacy. [26] While there is some evidence that those coerced to take part in drug treatment programs do as well as those who do so voluntarily, there is no evidence that coercion promotes pro-social activities. [27]

Strategies for mainstream courts

All courts should apply the principles of participation, dignity and trust identified in procedural justice research.

Goal setting is a powerful tool used by some problem-solving courts to promote self-determination, commitment and motivation for rehabilitation. According to Winick, setting goals ‘provides direction for the individual and focuses his or her interest, attention and personal involvement on the effort’. [28] For example, Perth Drug Court participants, at the start of their order, are asked to determine their goals while in the program and their strategies for attaining the goals. [29] A dedicated team of community corrections officers and a program officer support the participants’ implementation process and refer them to appropriate treatment and support agencies.

Commonly, participants set goals such as becoming drug-free, further education or training, obtaining employment, improving personal relationships and improving finances. In implementing their strategies they remove the dysfunction that has impeded them from making healthy choices while promoting strengths that broaden their opportunities for a healthy life in the future.

The problem-solving court praises participants for formulating their rehabilitation plan and supports their ability to implement it. The court uses review hearings to receive updates on progress, to encourage and support progress and to engage in a creative problem-solving exercise with participants where needed.

This strategy can be used by mainstream courts. [30] For example, when a court adjourns sentencing to allow offenders to participate in rehabilitation programs — such as a diversion program — or sentences offenders to a community-based order, it could ask offenders to state their goals and strategies for the adjournment period or order. They could be included in the terms of the order or conditions of bail on adjournment. In effect, that would be formulating a behavioural contract. [31] Review hearings can also be used in certain contexts.

Therapeutic court strategies could minimise the anti-therapeutic effects of laws providing for continuing supervision or detention of certain sex offenders. [32] In child welfare proceedings parents could formulate goals and strategies to promote family healing and address underlying issues, and implement the strategies while awaiting the final determination of the application.

Self-determination, community and the courts

Self-determination is also important for community groups and peoples. For example, coercive and paternalistic policies have been a feature of the treatment of Indigenous peoples by government and community agencies in diverse nations including Australia, Canada, South Africa and the United States. These peoples see self-determination — the right to make decisions concerning basic aspects of their lives in areas such as health, education, economic development and justice — as fundamental to resolving endemic problems that could not be resolved through coercion or paternalism but may well have been aggravated by them. [33]

Pearson asserts that self-determination is not passive but dynamic. It is about taking responsibility: ‘[s]ocial change ultimately requires citizens to be engaged in the solution of their own problems, that of their families and of their communities’. [34] He advocates that his people in Cape York Peninsula be active in promoting their traditional values and relationships and in changing the social and economic structures that have created problems.

The responsibility of communities to be involved in the resolution of their problems is a factor in the development of court-community collaboration. Lindsay argues that ‘[c]ommunities should not expect the courts to deal with [community problems] alone if the community has resources that could be put to collaborative use in partnership with the courts’. [35]

Involvement of the community is a vital part of problem-solving and Indigenous sentencing court programs. Magistrates and justice system personnel have met with Indigenous communities to listen to their concerns and wishes and have also involved them in the design and running of Indigenous sentencing courts. [36]

Drug courts commonly refer participants to local treatment and support agencies who may then be involved in collaborative case management of participants. Community courts are pro-active, working with government and non-government agencies in the community to determine problems, find solutions and implement required strategies. The aim of this community justice approach is ‘to restore order, strengthen community cohesion, repair the damage from crime, and build partnerships that nurture a more beneficial community life’. [37]

The principles underlying community-court collaboration are similar to those used in therapeutic court processes: participation, dignity and trust. Ideally, there is a sharing of information and concerns, an acknowledgment of the concerns of all those involved, the involvement of court and community agencies in decision-making in particular contexts, and a mutual respect and acceptance of participants’ good faith.

Court-community collaboration produces therapeutic outcomes. To paraphrase the words of Lord Falconer of Thoroton LC, it promotes the connection of courts to the communities they serve. [38] It also promotes community confidence in — and respect and support for — the court and the law, and facilitates the achievement of such community and court objectives as crime prevention and the rehabilitation and reintegration of offenders into the community. [39] Community-court collaboration can help dispel any perception that the courts are remote from the community and its problems. [40] It can bring the challenges facing courts into community focus and generate support for increased court resources. [41] Indigenous sentencing courts promote empowerment of the Indigenous community and a greater understanding of and respect for that community amongst judicial officers, justice system personnel and the wider community. [42]

Court-community collaboration marks a departure from previous thinking about courts’ functions. Previously it was thought that the courts’ ability to address community problems was limited as the causes were beyond the courts’ province. [43] The courts were institutions apart from the community, simply there to resolve conflict by determining legal disputes and enforcing sentences and remedies. But separation from the community carries the risk of a perception that courts are ignorant of community concerns. Problem-solving courts have opened up new possibilities for the court system.

Mainstream courts are already developing better community connections through processes such as community education programs and volunteer welfare officers. Some mainstream courts involve justice system stakeholders — such as the legal profession, police and community justice services — in meetings to discuss any issues concerning the court’s functioning. The next step would be to form consultative committees like those used by community courts, involving representatives of community service organisations, local government, treatment agencies, other government agencies and victim support organisations. The committees’ purpose would be to provide input as to court processes and their impact on the community and to offer suggestions for reform. The overall purpose would be to engage the community in the processes it has established to resolve conflict with the law — the justice system — and to address underlying problems.

The ultimate step in this process would be for a court to operate like a community court or neighbourhood justice centre where the court is not simply reactive but is actively engaging with the community in identifying and resolving local justice-related problems. Judicial officers would be a part of the engagement process.

Although all courts should consider a community engagement function, this model could be particularly considered for magistrates’ courts. [44] After all, magistrates’ courts are considered ‘the people’s court’, dealing with the vast bulk of criminal cases and using less formal processes than other courts. Under this proposal, magistrates’ courts would continue to deal with summary trials and sentencing. But they would also have a problem-solving component. Rather than focusing only on specific problems, such as illicit drugs or domestic violence, they could follow the example of the Geraldton Alternative Sentencing Regime and address a broad range of offending-related problems in partnership with offenders and local treatment and support agencies. [45] If a particular magistrates’ court did not have an Indigenous sentencing court, then depending on community wishes, need and resources, it could move to establish such a court. [46]

The court would have a community engagement and development function. While community courts in the United States typically target less serious quality of life offences such as prostitution and vandalism, the magistrates’ courts community development function could be designed to fit the needs of the local community.

Courts — particularly magistrates’ courts — often have large workloads and limited time to spend on cases. Thus, a court’s ability to use problem-solving, therapeutic jurisprudence-based techniques may be limited — despite their potential beneficial outcomes for the parties and community. But if people coming to court are to have a perception other than that the court thinks of them as ‘a number’ then time needs to be available according to the needs of each case. This requires appropriate court staffing levels. Further, the court’s community development function envisioned in this article requires adequate staff. These resource issues are a matter for the Executive to consider. However, given that the British government is in the process of introducing community courts throughout England and Wales the proposal is not unrealistic. [47]

Traditionally, judicial officers have limited their engagement with the community in order to safeguard judicial independence and impartiality. However, as country magistrates and problem-solving judicial officers have shown, judicial officers can engage with community agencies and listen to their concerns about general issues without compromising their ability to hear individual cases. [48] Their engagement has included agency visits and attending agency meetings.

The extension of therapeutic jurisprudence and problem-solving court principles to mainstream courts requires specific education programs for the judiciary, lawyers and justice personnel. [49] For example, the stages of change model and motivational interviewing techniques used in problem-solving courts are not normally included in legal education. [50] Development of communication and other emotional intelligence related skills should be an important component of these programs.

Like Indigenous sentencing courts, problem-solving court programs acknowledge and apply the principle, articulated by Sen, that people are dynamic agents of change. Their approach emphasises collaboration and connection rather than adversarialism and separation. They seek to promote individual and community responsibility, connection and involvement in resolving problems. They produce therapeutic outcomes for participants and the community. The principles they generally apply can be stated as follows: take a comprehensive approach; process is powerful; telling the story to a judicial officer who listens is important; involving people in decision-making is vital; promoting dignity, trust and connection is essential; and courts can make a difference. These principles can be applied in mainstream courts to further justice system goals, including offender rehabilitation and community respect for courts and the justice system.

[*] MICHAEL KING is an honorary senior research fellow at Monash University Law School with research interests including alternative and comprehensive approaches to court and legal practice.

© Michael King

email: [email protected]

[1] Greg Berman and John Feinblatt, Good Courts (2005). As to court staff, see: Michael S King and Steve Ford, ‘Exploring the Concept of Wellbeing in Therapeutic Jurisprudence: The Example of the Geraldton Alternative Sentencing Regime’ (2006) 1 eLaw Journal (Special Series) 9 <https://elaw.murdoch.edu.au/special_series.html> at 14 May 2007.

[2] Berman and Feinblatt, above n 1.

[5] Bruce J Winick and David B Wexler (eds), Judging in a Therapeutic Key (2003); Michael S King, ‘Therapeutic Jurisprudence in Australia: New Directions in Courts, Legal Practice, Research and Legal Education’ (2006) 15 Journal of Judicial Administration 129.

[6] Kate Auty, ‘We Teach All Hearts to Break — But Can We Mend Them? Therapeutic Jurisprudence and Aboriginal Sentencing Courts’ (2006) 1 eLaw Journal (Special Series) 101 <https://elaw.murdoch.edu.au/special_series.html> at 14 May 2007.

[7] Tom Tyler, ‘The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings’ in David B Wexler and Bruce J Winick (eds), Law in a Therapeutic Key (1996) 3.

[8] Ibid 10.

[10] Warren Brookbanks, ‘Narrative Medical Competence and Therapeutic Jurisprudence: Moving Towards a Synthesis’ (2003) 20 Law in Context 74.

[11] Michael S King, ‘The Therapeutic Dimension of Judging: The Example of Sentencing’ (2006) 16 Journal of Judicial Administration 92.

[12] Shadd Maruna and Thomas P LeBel, ‘Welcome Home? Examining the “Reentry Court” Concept from a Strengths-based Perspective’ (2003) 4 Western Criminology Review 91 , 101.

[13] Albert Bandura, ‘Self-efficacy’ (1997) 13(9) Harvard Mental Health Letter 4.

[14] Drug Court exit survey response held by the Perth Magistrates Court.

[15] Michael S King, ‘Natural Law and the Bhagavad-Gita: The Vedic Concept of Natural Law’ (2003) 16 Ratio Juris 399.

[16] Bruce J Winick, ‘On Autonomy: Legal and Psychological Perspectives’ (1992) 37 Villanova Law Review 1705.

[17] Milton Friedman, Capitalism and Freedom (2002) 200.

[18] Amartya Sen, Development as Freedom (1999).

[19] Edward L Deci et al, ‘Motivation and Education: The Self-Determination Perspective’ (1991) Educational Psychologist 325, 327–328.

[21] Marylène Gagné and Edward L Deci, ‘Self-determination Theory and Work Motivation’ (2005) 26 Journal of Organizational Behavior 331.

[22] Winick, above n 16.

[23] Ibid 1766.

[24] Ibid 1757.

[25] Shadd Maruna, Making Good: How Ex-Convicts Reform and Rebuild their Lives (2001).

[26] Winick, above n 16.

[27] Maruna and LeBel, above n 12, 96.

[28] Winick, above n 16, 1760.

[29] Michael S King, ‘Perth Drug Court Practice’ (2006) 33(11) Brief 27.

[30] Winick and Wexler, above n 5; King, above n 11.

[32] Michael S King, ‘Problem-solving under the Dangerous Sexual Offenders Act 2006 (Western Australia) ’ (2007) eLaw Journal 32 <https://elaw.murdoch.edu.au/issues/2007/1/eLaw_problem_solving.pdf>.

[33] Noel Pearson, Our Right to Take Responsibility (2000).

[34] Ibid 43.

[35] Margot Lindsay, ‘Public Involvement as the Key to Public Trust and Confidence: A View from the Outside’ (1999) 36(3) Court Review 20, 21.

[36] Michael S King, ‘Applying Therapeutic Jurisprudence in Regional Areas: The Western Australian Experience’ (2003) 10 (2) eLaw Journal < http://www.murdoch.edu.au/elaw/issues/v10n2/king102nf.html > at 14 May 2007; Auty, above n 6.

[37] Todd Clear and Eric Cadora, Community Justice (2003) 4.

[38] Lord Falconer of Thoroton, Speech to the Community Justice Conference, London, 27 November 2006 < http://www.dca.gov.uk/speeches/2006/sp061127.htm > at 14 May 2007.

[39] David Rottman, Hillery S Efkeman and Pamela Casey, A Guide to Court and Community Collaboration (1998) < http://www.ncsconline.org/WC/Publications/Res_CtComm_CFCGuidePub.pdf > at 14 May 2007.

[40] Falconer, above n 38.

[41] Lindsay, above n 35.

[42] Auty, above n 6.

[43] R v Peterson [1984] WAR 329 , 332.

[44] Michael S King and Stephen Wilson, ‘Country Magistrates’ Resolution on Therapeutic Jurisprudence’ (2005) 32(2) Brief 23.

[45] King and Ford, above n 1; King, above n 36.

[46] Auty, above n 6.

[47] Falconer, above n 38.

[48] Berman and Feinblatt, above, n 1; King, above n 36.

[49] King, above n 5.

[50] King, above n 11.

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The Evolution of Problem-Solving Courts in Australia and New Zealand: A Trans-Tasman Comparative Perspective

• First Online: 01 January 2013

Cite this chapter

• Elizabeth Richardson 3 ,
• Katey Thom 4 &
• Brian McKenna 5  

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This chapter provides an overview of problem-solving courts currently in operation in Australia and New Zealand. We explore how the evolution of the problem-solving courts has been shaped by the localized needs of the justice, health, and social service sectors and the dynamic academic, legal, and professional cultures of these countries. The recognition that many people coming before court do not have a single problem that can be identified as the sole cause of offending is highlighted and we illustrate that this has led some Australian states, and New Zealand, to develop integrated programs that address multiple and complex problems more holistically. We argue that a key issue integral to the longevity of problem-solving courts is the ability of the legal, health, and social services sectors to better address issues of coexisting mental health and addiction problems, develop integrated services, and achieve effective collaboration between the various sectors. Collaboration is a multifaceted concept that is integral to the successful operation of problem-solving courts but may be hard to achieve because of the complexities of the wider health and social service systems. We argue that collaboration is a concept that has not yet adequately been explored in the literature or in the practice of these courts. However, we suggest ways in which problem-solving courts can bring about meaningful and effective interdisciplinary collaboration between the legal, health, and welfare sectors beyond paying lip service to the concept.

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The Law Reform Commission of Western Australia ( 2008 , 2009 ) has used the term “court intervention programs,” whereas Payne ( 2005 ) preferred the use of the term “specialty courts.”

Australian problem-solving courts have been comprehensively reviewed elsewhere (Freiberg 2001 , 2005 ; King et al. 2009 ; Law Reform Commission of Western Australia 2008 , 2009 ; Payne 2005 ; Richardson and McSherry 2010 ).

Although King’s comments pertained to drug courts, this is true generally of other types of problem-solving courts, however, the broader drug diversion system has become more structured in Australia over recent years as a result of national campaigns to target illicit drug use such as the National Illicit Drugs Strategy and the Illicit Drug Diversion Initiative (Hughes and Ritter 2008 ; Law Reform Commission of Western Australia 2008 ).

King and Auty ( 2005 ) have noted that Magistrates’ Courts have not traditionally been the site of innovation. The pressure of onerous lists, multiple jurisdictions, and circuit requirements meant that magistrates had little time to consider different ways of administering justice, but it is these same pressures that have driven the push towards problem-solving courts. Freiberg ( 2001 ) has also discussed the factors behind the adoption of problem-solving courts in Australia in more detail.

As Nolan ( 2009 ) highlighted, this is not the case in England, Scotland, and Ireland, where therapeutic jurisprudence has not generally been embraced.

Studies of Australian drug courts have generally used experimental or quasiexperimental design: for an overview of Australian drug court evaluations see Indermaur and Roberts ( 2003 ) and Jones ( 2011 ).

These courts can be contrasted to the Queensland Mental Health Court, which sits in the Supreme Court of Queensland and primarily determines legal issues of fitness to plead and criminal responsibility. For a more comprehensive overview of Australian mental health courts see Richardson and McSherry ( 2010 ).

Other states considering establishing mental health courts include New South Wales, where a symposium was held by the Law Reform Commission of New South Wales on 1 April 2011 to consider “Should NSW have a Mental Health Court?” See, http://sydney.edu.au/news/law/457.html?eventcategoryid=35&eventid=7386 and http://www.abc.net.au/rn/allinthemind/stories/2011/3189078.htm . Retrieved 15 June 2011. The Law Reform Commission of New South Wales subsequently made recommendations that a mental health court be established in that state: New South Wales Law Reform Commission ( 2012 ).

A Community Court in Northern Territory also exists, however, this is a indigenous sentencing court. See below for further discussion of these types of courts.

Restorative justice has been described as “the restoration of victims, offenders and communities primarily through mediated encounters between victims and offenders—and in some cases their supporters—where they discuss what happened, in relation to harmful behavior, and why it happened, and determine what offenders will do to make amends” (King et al. 2009 , p. 39).

More information on the Neighbourhood Justice Centre can be found at http://www.neighbourhoodjustice.vic.gov.au/site/page.cfm .

Examples of holistic approaches to dealing with an individual with multiple problems can be found in Michael King’s Solution-Focused Judging Bench Book ( 2009 ) at p. 40–41. King ( 2009 ) states that “problem-solving programs that take this approach seek to provide assistance to participants where needed and appropriate in major life domains, such as health (addressing substance abuse and other problems), employment and training, accommodation, financial planning, other life skills, recreation and relationships” (p. 40–41).

Family group conferences are used both as a precharge mechanism to determine whether prosecution can be avoided and also to determine how to process cases admitted or proved in the youth court (Ministry of Justice 2011 ). Family group conferences involve the young offender, the victim, and their families with the aim to reach a group consensus on a “just” outcome (Ministry of Justice 2011 ). The conferences results in a family group conference plan, which includes methods of addressing the victim’s needs and concerns, accountability issues, the young person’s treatment plan, and other relevant issues such as education and cultural reports (Court in the Act 2008 , October).

Indigenous sentencing courts have emerged as a result of the over-representation of indigenous offenders in the criminal justice system and a recognition that there is a more appropriate way of delivering justice to indigenous offenders such as the use of more informal and flexible processes (King et al. 2009 ). A key feature of Indigenous sentencing courts is that the magistrate is usually “assisted or advised by one or more respected persons from the offender’s community” (King et al. 2009 ).

Nolan ( 2009 ) uses the term “legal accents” to denote that, just as countries have different accents in terms of language and speech, so too do countries have different legal accents as a result of the particular legal culture reflected in the different ways in which these countries have developed problem-solving courts.

Regardless, questions over whether a national model for domestic violence courts should be implemented (Mansfield 2008 ) at the expense of localized need (Ministry of Justice 2008 ) remain.

Although Richardson and McSherry ( 2010 ) were commenting on the need for adequate resources in mental health courts, these comments apply equally to other problem-solving courts.

There has been considerable attention focused on this issue at a National and State level in Australia, New Zealand, the USA, and the UK to the extent that there are now numerous government initiatives, policy documents, and guides to best practice regarding coexisting mental health and addiction problems.

One significant initiative that has now ceased operation, and although not targeting criminal offenders, was the Multiple and Complex Needs Panel (the Panel) a statutory body that operated as part of the Multiple and Complex Needs Initiative (MACNI) in Victoria from 2004–2009. Although the Panel was not a problem-solving court and operated in the civil justice system, it sought to improve service provision to those people with multiple needs, who often became involved with the criminal justice system (Hamilton 2010). MACNI involved work at many levels in order to gain the cooperation of the different service sectors (Hamilton 2010, p. 316). The Panel ceased operation in 2009 due to legislative changes to the MACNI, which saw many of the functions of the Panel devolved to Department of Human Service regions. However, the model continues to influence policy as there is much to be learned from the experiences of this program. It is described in detail at http://www.dhs.vic.gov.au/operations/multiple-and-complex-needs-unit/how-macni-was-developed . Retrieved 10 July 2011.

The evaluation of outcomes from CISP by Ross ( 2009 ) “involved comparing the post-court records of 200 persons who had completed CISP in 2007 with a sample of 200 persons sentenced in other Magistrates’ Court venues in the same period” (p. 111).

In Australia, the Victorian Government is currently exploring the mainstreaming of problem-solving and therapeutic approaches through the Integrating Court Programs (ICP) project. See http://www.courts.vic.gov.au/Integrating-Court-Programs . Retrieved 15 July 2011. The project website states “The challenge at the heart of the Integrating Court Programs (ICP) project is to take the lessons learned from Victoria’s local court initiatives—both the well-publicized and the little-known—and consider how they can be applied across the court system, beginning with the Magistrates’ Court. The overall aim is to develop a more holistic response to court users that embeds the successful processes and outcomes of problem-oriented approaches to justice within the day-to-day business of the courts.”

Conversely, in the evaluations conducted of the Christchurch Youth Drug Court, Carswell ( 2004 ) found amongst other outcomes, that interagency co-ordination was working well. However, a later study found that the Youth Drug Court was not reducing reoffending (Searle and Spiers 2006 ). Although it is not possible to say why that was, and numerous factors were undoubtedly involved, successful interagency coordination was not seemingly having a significant impact on reoffending in this court.

This arrangement is uncommon in Australia and reflects the way in which this program was established using only the existing resources available to the Court with no additional funding or resources available to commence the pilot. Thus, the existing forensic mental health liaison workers who, prior to the commencement of the Mental Health Diversion List, provided forensic mental health assessments to the Magistrates Court of Tasmania agreed to become involved in the new List as part of their current work with the Court. The provision of these services continues to be provided by the Department of Health even though the List has become an established program in the Magistrates Court.

These groups may also play a role in selecting service providers and which treatment and services will be utilized by the problem-solving court program. In Australia, the way in which service providers for problem-solving courts are selected and paid for differs in each jurisdiction. Generally, most problem-solving courts only have access to the treatment and service providers available in the community. Many grassroots programs, such as the Tasmanian Mental Health Diversion List start with no additional funds to purchase services. However, in some states interdepartmental agreements between government departments to make services available for these programs are used. Programs which have been established as government funded pilots may have brokerage funds available to purchase designated funds for purchasing services or goods to address a participant’s specific needs and to assist in his or her engagement with the program (Trimboli 2012 , 22; see Tasmania Law Reform Institute 2006 ).

Nor do we have any indication of the reciprocal impact that problem-solving courts are having on health and social services, for example, are these courts stretching services in the community and resulting in rationing of services for other users who are not accessing these services through the criminal justice system.

Housing NSW is an agency of the NSW Department of Family and Community Services responsible for social housing in that state.

The debate regarding whether to underpin problem-solving courts with legislation is not a straightforward one, however, and requires future consideration as to the advantages and disadvantages of such an approach.

Wenzel et al. ( 2004 ) conducted a study of collaboration practices in 14 drug courts in the USA and examined the following factors: “(1) The extent to which drug courts and providers accommodate each other’s practice standards; (2) the availability and extent of case management services; (3) cross training of staff; (4) documentation of relationships (e.g., written agreements); (5) resource sharing; (6) joint assessment of clients; (7) joint planning of client service goals; (8) client referrals; (9) mutual sensitivity to concerns of the other agency or program; (10) sharing of information about clients; and (11) staff meetings” (Wenzel et al. 2004 , p. 256).

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The authors thank Bernadette McSherry and Arie Freiberg for comments on earlier drafts of this chapter.

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Richardson, E., Thom, K., McKenna, B. (2013). The Evolution of Problem-Solving Courts in Australia and New Zealand: A Trans-Tasman Comparative Perspective. In: Wiener, R., Brank, E. (eds) Problem Solving Courts. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-7403-6_11

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Problem-Solving Courts

The scope of criminal court research and evaluation has grown with the advent of problem-solving courts. Examples of problem-solving courts include drug courts, domestic violence courts, reentry courts, and veterans treatment courts.

The Problem-Solving Court Model

Problem-solving courts differ from traditional courts in that they focus on one type of offense or type of person committing the crime.

An interdisciplinary team, led by a judge (or parole authority), works collaboratively to achieve two goals:

• Case management to expedite case processing and reduce caseload and time to disposition, thus increasing trial capacity for more serious crimes.
• Therapeutic jurisprudence to reduce criminal offending through therapeutic and interdisciplinary approaches that address substance use disorders and other underlying issues without jeopardizing public safety and due process.

The most common problem-solving courts are drug courts, but several other types of programs apply similar approaches to address violent and repeat offending, and returns to incarceration. [Note: Repeat offending is often referred to as "recidivism" in criminal justice research.]

Learn more about:

• Drug courts
• Domestic violence courts

Other NIJ projects in this area include:

• " Identifying Those Who Served: Modeling Potential Participant Identification in Veterans Treatment Courts ," and article in the inaugural issue of Drug Court Review , published by the National Drug Court Resource Center.
• The final report or executive summary as submitted to the National Institute of Justice.
• NIJ’s completed Evaluation of Second Chance Act Adult Reentry Courts that examines program processes, impacts, and costs.
• Past evaluations of two community court programs, see  A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center, (Executive Summary) (pdf, 13 pages) , and  Dispensing Justice Locally: The Impact, Costs, and Benefits of the Midtown Community Court (pdf, 361 pages) .

Cite this Article

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Queensland Courts

Queensland drug and alcohol court.

Drug courts treat offenders with a severe substance use disorder contributing to their offending behaviour. The Queensland Drug and Alcohol Court (QDAC) targets adult offenders to be supervised and undertake treatment to address their drug and/or alcohol dependency issues and criminal offending.

For more information about the Drug and Alcohol Court program, please access the QDAC Information Handbook .

Legislation framework

The legislative framework supporting QDAC is contained in  Part 8A of the Penalties and Sentences Act 1992 (Qld) and integrates the principles of a drug court program into the existing sentencing framework for Queensland.

The making of a Drug and Alcohol Treatment Order (Treatment Order) is provided for at  s151C of the  Penalties and Sentences Act 1992 in order to facilitate the rehabilitation of participants by:

• providing a judicially supervised, therapeutically oriented, integrated treatment regime
• reducing the participant’s severe substance use disorder
• reducing the level of criminal activity associated with the disorder
• assisting the participants’ integration into the community.

A therapeutic jurisprudence approach to justice – a participant’s journey through Queensland Drug and Alcohol Court

To follow the possible pathways of a person through the Queensland Drug and Alcohol Court, access the interactive video on the  Queensland Sentencing Advisory Council website.

Frequently asked questions

1. what is the queensland drug and alcohol court.

QDAC provides an intensive and targeted response to adult offenders with severe drug and/or alcohol use directly associated with their offending. Offenders are strictly monitored by the court; they are sentenced to undertake treatment to address their drug and/or alcohol dependencies and criminal thinking. The goal is to reduce an offender’s severe substance use disorder and future offending. The court features:

• regular and random drug testing
• regular court appearances to ensure offenders stay on track
• incentives for offenders to continue to engage with treatment.

The court aims to improve community safety by rehabilitating offenders so that they can reintegrate back into the community as productive members of our society.

2. What evidence is there to show that drug courts work?

Research worldwide has shown that drug courts work when they are based on best-practice principles. Evaluations of the former Queensland drug court , as well as the New South Wales and Victorian drug courts, showed they lessened the likelihood of participants reoffending. Similar courts in New Zealand, Canada, the United States and the United Kingdom found a reduction in drug use—as well as increased social stability, housing and employment—for offenders who complete the program.

3. What is the Drug and Specialist Court Review?

The Queensland Government initiated the Drug and Specialist Courts Review to ensure the reinstated drug court was evidence-based and cost-effective, reflecting modern best-practice. The Review studied what is being done in Australia and around the world to address alcohol and other drug use associated with offending.

The Review also recommended improvements in Queensland’s court programs. Court Link responds to that recommendation, providing case management for offenders through a bail-based program.

4. What were the key findings of the Drug and Specialist Court Review?

The Drug and Specialist Court Review found that court-based intervention programs can reduce drug-related offending in a cost-effective way. The Review supported the reinstatement of a drug court in Queensland. It recommended the court be widened to also include offenders with alcohol dependency.

5. Why is the Queensland Drug and Alcohol Court only in Brisbane?

The Drug and Specialist Court Review recommended that QDAC should only operate in one location and be expanded once the model has been evaluated and refined. Brisbane has been identified as the best location because of its availability of services and the high caseload of the Brisbane Magistrates Court. Any expansion of QDAC will be considered post completion of the evaluation.

6.  Are drug courts used elsewhere in Australia and overseas?

Yes, the Northern Territory is the only jurisdiction without a drug court in operation. There are also drug (and alcohol) courts in New Zealand, the United States, Canada and the United Kingdom.

7. What is a Drug and Alcohol Court Treatment Order?

A Drug and Alcohol Treatment Order is a prison sentence of up to four years wholly suspended while the offender completes a two-year treatment program. The treatment addresses substance use as well as offending behaviour.

8.  Who is eligible for a Drug and Alcohol Treatment Order?

There are strict eligibility requirements for an offender to be sentenced to a Treatment Order. An offender must:

• be an adult and plead guilty to charges at a Magistrates Court
• live or intend to live in the Brisbane Magistrates Court district
• have a severe substance use disorder that contributed to their offending behaviour.

9. Why are some offences ineligible for a Drug and Alcohol Treatment Order?

The Drug and Specialist Court Review recommended certain offences be exempt from the court. Offences heard in the District Court and the Supreme Court are ineligible as they would likely deal with more complicated and serious drug offences—such as aggravated supply of a dangerous drug and trafficking. An offender is not eligible for a Drug and Alcohol Treatment Order if they are:

• already serving a term of imprisonment (excluding a suspended sentence or Intensive Correction Order)
• subject to a parole order or cancelled parole order in Queensland or order similar in another State
• charged with a sexual assault offence.

10. What does a severe substance use disorder mean?

A person has a severe substance use disorder if they are:

• taking a substance in larger amounts or for longer than you’re meant to
• wanting to cut down or stop using the substance but not managing to
• spending a lot of time getting, using or recovering from use of the substance
• have cravings and urges to use the substance
• not managing to do what you should at work or home because of substance use.

11. How will offenders be monitored and treated while on the Treatment Order?

QDAC is located on level 4 of the Brisbane Magistrates Court. It has its own magistrate who heads up a multi-disciplinary team to monitor and support offenders while they complete their treatment. This team includes:

• lawyers from Legal Aid Queensland to provide legal advice
• Corrective Services officers who supervise and monitor offenders
• Queensland Health clinicians to provide alcohol and other drug treatment
• Prosecutors from the Queensland Police Service
• Department of Justice and Attorney General court officers
• a Cultural Liaison Officer who supports participants who identify as Aboriginal and/or Torres Strait Islander

The Drug and Alcohol Treatment Order has strict conditions requiring offenders to regularly appear at court, be tested for drug and/or alcohol use, and do everything that the court says. There are swift consequences for breaches, including going to jail for short periods. Repeated breaches or stopping the Treatment Order means an offender is likely to have their Treatment Order revoked and be re-sentenced for their original offences.

12. How are victims of crime protected?

The Drug and Alcohol Court Treatment Order may only be made after assessing an offender’s suitability. This assessment considers the seriousness of the offence and any risk of further violence including domestic violence against a victim.

13. Does the Queensland Drug and Alcohol Court have a cultural advisor as part of its team?

Yes, an Aboriginal and Torres Strait Islander Cultural Liaison Officer is a full-time member of the QDAC team. This team member will support Aboriginal and/or Torres Strait Islander people, and liaise with other support services to assist offenders to meet the requirements of their Treatment Order.

14. What is the Drug and Alcohol Court process?

• Upon completion of the Drug and Alcohol Court Referral Form 1, an eligibility mention date is to be obtained from the court clerk
• The Form 1 is submitted to the court.
• If eligible, a magistrate may  refer an offender to the Drug and Alcohol Court (PDF, 245.4 KB) .
• At the eligibility mention, the QDAC Magistrate will determine eligibility based on information provided by the QDAC team. If eligible, the matter is adjourned while a suitability assessment is undertaken.
• If determined suitable by the QDAC Magistrate, the offender is sentenced to a Treatment Order and begins treatment. If the offender is not suitable, the court may refer the offender to other court based programs such as Court Link or Murri Court, sentence the offender in accordance with law, or refer the offender back to the originating Magistrates Court.
• The offender successfully completes the Treatment Order, breaking the cycle of drug-related offending. They are engaged in treatment, education and employment; they rebuild family and community connections and maintain stable accommodation.

15. What is the Brisbane Drug and Alcohol Court catchment?

Offenders must live or intend to live in the Brisbane Magistrates Court District boundary to be eligible for a Treatment Order. This includes residential addresses in the postcodes 4000 – 4018, 4025 – 4036, 4051 – 4077, 4078 (Forest Lake only), 4101 – 4113, 4115, 4116, 4117 (Karawatha only), 4120 – 4123, 4151 – 4156, 4169 – 4179.

Once the participant is on the Treatment Order, if the court approves, the participant may reside outside of this catchment.

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