Courts, Tribunals, and the Human Services

C H A P T E R O B J E C T I V E SHuman Computer Interaction
In this chapter we aim to:
› identify a range of different dispute resolution bodies, including
courts and tribunals
› provide an overview of the range of human service activities in
and connected with those bodies
› explore the legal processes involved in giving evidence in court
› consider how human service workers can prepare for
court-related work such as being called as a witness and
accompanying others to court
› introduce general principles relevant to writing court reports.
Courts, Tribunals,
and the Human Services 6
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Images and anxieties
Giving evidence in court can be a major cause of professional anxiety. Allied health
professionals can fnd giving evidence in court ‘a harrowing experience’ (Day
2008, p. 214). ‘Difcult and distressing for all participants’ is how adjudication in
child protection matters has been described (Sheehan 2003, p. 38). Court phobia
and humiliation often characterise the perceptions of psychologists about giving
evidence (Stevens 2003). Clinical social workers are claimed to ‘march bravely to the
stand like martyrs’ (Vogelsang 2001, p. 1). Social workers feel that their practice and
evidence is held in low regard in the legal arena (Preston-Shoot, Roberts & Vernon
1998). Some evidence suggests courts rely on legal knowledge and discretion more
than they do on the information from child protection services (Sheehan 2003),
and that they see social work reports as biased towards one party in family law cases
(Swain 2005). ‘Courts are not shy of commenting unfavourably on the testimony
and credibility of human services witnesses in civil and criminal actions’ (Kennedy
2009, p. 141). Human service workers and their evidence have also received very
negative responses from Coroners’ courts as attested to by some recent Australian
child death cases (see, for example, Inquest into the death of Chloe Valentine 9 April
2015 Coroners Court of South Australia, paragraphs 4.41, 4.52). While these
quotes concern particular professional groups and areas of work, their sentiments
apply generally across the human services. Cultural diﬀerences between the law and
the human services discussed in Part I can be particularly conspicuous in court work.
The litany of woes about human services work in courts is probably compounded
by images in popular media of aggressive barristers savaging witnesses. Few of these
depictions are accurate reﬂections of general human service worker experience in
Australia. ‘Most court dramas on television are American and not all are indicative
of courtroom or tribunal etiquette in Australia’ (AHPRA 2013). Civil litigation has
been less common in this country, and human service workers, with the exception of
psychologists, appear here less commonly as expert witnesses. Nonetheless, despite
this lack of direct experience, human service workers are generally apprehensive
about court-related work.
Courtroom experiences are commonly infrequent and often unexpected. This
makes it hard for workers to prepare for them. Writing about psychologists in
courts, Wardlaw (1984) makes a useful distinction between evidence and courtroom
performance. He argues that skills in building up sound evidence through good
practice can be rehearsed daily by beginners and experienced workers alike, regardless
of courtroom experience. To elaborate on the theme of Chapter 5, although the
experience of giving evidence in court is generally testing and sometimes traumatic,
human service workers can minimise damage to their self-esteem and increase their
eﬀectiveness by having confdence in the quality of their own work practices and
their evidence. If they report simply, accurately, and honestly about their professional
actions, which are appropriate and well documented, they are less likely to be
destabilised by court procedures. The symbiosis between sound human service
practice and satisfaction of legal requirements is again emphasised in this chapter.
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Courts, similar bodies, and
dispute resolution
Courts are the traditional, recognisable forums in which litigation is adjudicated.
Increasingly now, however, disputes are resolved in many other bodies, and methods
other than litigation are used for disposing of them. The ‘informal justice’ movement
in Australia and elsewhere is reﬂected in the burgeoning number of quasi-legal bodies
for determining disputes and reviewing decisions—for instance, tribunals, boards,
authorities, and commissions. It is also characterised by the proliferation of alternative
dispute resolution (ADR) approaches (introduced in Part I), which include negotiation,
mediation, conciliation, facilitation, independent expert appraisal, and arbitration.
Many ADR approaches are used in human service organisations and programs (for
example, Relationships Australia), and may be encountered or will be familiar to
human service workers in that context. Some of these approaches are now used in
court systems. For example, ADR has been incorporated into Family and Federal Court
processes, and many state courts can direct parties to undertake mediation. Conciliation
is an expected part of many complaints made to Fair Work Australia. Both conciliation
and arbitration are entrenched in state industrial courts. Court-annexed arbitration
also increasingly applies to state courts. ADR approaches are common in quasi-judicial
bodies. They are predominant in agencies that oﬀer dispute resolution services—for
example, community legal or justice centres, and neighbour, family, and commercial
conﬂict resolution services, under the auspices of any number of organisations.
Despite these trends towards ADR, this chapter focuses on courts and quasijudicial bodies because the process of testifying in them particularly challenges
human service workers. There are enduring debates about defnitions of and
diﬀerentiation between courts, tribunals, and other quasi-legal bodies. For present
purposes, these are sidestepped, and the term tribunal is used loosely to cover a range
of quasi-judicial bodies that have relevance to human service work. In the interests of
simplicity, the term ‘court’ may be used to include both courts and tribunals unless a
diﬀerentiation is otherwise indicated.
Scope of human service activity
in courts and tribunals
Main roles
Human service workers may have a number of main roles across a range of courts
and tribunals:
• Witness of fact, character, or as an expert: these roles are elaborated later. Brieﬂy,
workers may give factual evidence about events that they have witnessed; they may
give evidence about the good character of someone who is a respondent or defendant
in a case; and they can testify as to opinions based on their specifc expertise.
Chapter 6: Courts, Tribunals, and the Human Services 125
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• Report writer: sometimes human service workers prepare reports—for example,
a pre-sentence report in corrections, or documents to inform courts. They may
or may not be called on to give oral evidence in court about these documents.
• Applicant or plaintiﬀ: human service workers may initiate or have administrative
carriage of actions, commonly under a statutory power—for example, a child
protection application—even though a lawyer or barrister is likely to conduct
the case. The applicant will often also be a key witness of fact about, for instance,
parental behaviour. Human service workers may also be applicants in their own
cases—for example, in employment or injury actions.
• Respondent or defendant: human service workers who are the subjects of action
become respondents or defendants. For example, if sued for negligence, or
charged under criminal law, or cited as the decision maker under a number of
appeals processes, these roles apply to them.
• Lay advocate: human service workers assist others to make applications, prepare
submissions, and appear on their behalf, in particular before tribunals.
• Supporter: human service workers often support others who are involved in legal
proceedings.
• Arbitrator, negotiator, mediator, conciliator, and facilitator: these roles in courtrelated processes may be assumed by human service workers and, as explained in
Part I, by others including lawyers.
• Member or adjudicator: some tribunals require one or more members to have
backgrounds in social welfare—for example, the Administrative Appeals Tribunal
(AAT), the Social Security Appeals Tribunal (SSAT), and state adult guardianship
bodies.
In a professional misconduct case against a psychologist, the Psychology Board called 11
professional witnesses. These included two psychologists, a drug and alcohol outreach
case worker, a lawyer working with victims of crime and the lawyer’s administrative
assistant. The drug and alcohol outreach case worker had made a notification regarding
possible misconduct to the board. One of the psychologists, who had also made a
notification of possible misconduct to the Board, was in addition a sessional member of
the Victorian Civil and Administrative Tribunal. The other psychologist was a professor
who had published widely in diverse fields including a focus on experience of trauma.
Psychology Board of Australia v Greco (Review and Regulation List) [2014] VCAT 940 (11 August 2014)
Advocates of a kind
Two points are worth highlighting. First, human service workers often imagine
themselves appearing before legal bodies in the role of advocates for the vulnerable
or oppressed. However, in a signifcant amount of tribunal activity in particular, they
work for the organisations whose decision making is in question; or they are the
LAW IN
PRACTICE
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applicant for an order that may deprive an individual of, say, liberty or housing; or
they may actually, alone or with others, sit as tribunal members. In terms of simple if
not entirely accurate stereotypes, they represent ‘might’ as much as ‘right’ (McSherry
and Freckelton (2013). This underscores again the importance of the principles of
administrative law previously outlined in Part I, both in relation to the worker as
original decision maker and in their tribunal work.
Second, human service advocacy roles must be diﬀ erentiated from the role
of conducting specif c cases in courts and tribunals. The latter is legal advocacy
and not the province of human service workers, other than in the limited role
of lay advocate. Human service workers do work, albeit sometimes uneasily, in
partnership with lawyers to achieve shared, desired ends. When writing reports
or giving fact or opinion evidence, they are not advocates; they are witnesses
responsible for giving the best evidence so that the adjudicating body can make
the best decision. However, the tendency of psychologists, and we would argue all
human service workers, to plead or advocate inappropriately in some courts and
tribunals, for example those dealing with immigration detention and involuntary
mental health treatment matters, has been observed (Gordon 2011; Allan and
Davis 2010). Human service workers who are provoked into assuming a legal
advocacy role when writing reports or giving evidence are easily brought unstuck
and lose credibility in the court system (see Swain 2005). In the UK, a social worker
who posted commentary immediately before and then after the court decision in
a child protection case she was involved in was disciplined and conditions were
imposed upon her eligibility to practice (Stevenson, 2014a). She lost her job, was
subjected to intense media attention ‘forcing her out of her second job’, and ‘had
to move house after her personal details were published online and she received
threats’ (Stevenson, 2014b). Those who demonstrate evidence-based, thorough,
and objective preparation for and performance in reporting and in court, may help
produce a desired result. Thus they may still be striving for an advocated outcome,
but not by advocating in their witness role.
Re ect
Advocacy is an important function for human service workers. They advocate for individuals in many
arenas, for systematic change, and for many causes in between. This contrasts with legal advocacy
(the carriage and conduct of court cases) which is restricted to lawyers. Why is it critical for human
service workers to be aware of the limits to their roles as advocates? What are some potential
consequences of exceeding these limits? What impact might this have on human service clients?
Range of courts
The main types of courts relevant to human service work are as follows:
• Courts hearing criminal matters: Workers may be witnesses of fact—for example,
they may have seen an assault; they may be report writers or provide oral evidence
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pertinent to sentencing; they may give character evidence; on occasions they may
be the defendant. A few are called as expert witnesses.
• Courts hearing civil matters: Workers may be applicants and respondents,
witnesses of fact and character, and possibly even expert witnesses.
• Children’s and Youth courts: In these courts, where questions of adoption, juvenile
oﬀending, need for care, neglect, and abuse are decided, human service workers
are commonly key witnesses of fact, report writers, and sometimes have carriage
of applications.
• Family Court of Australia: Family Consultants for this Court established under
the Family Law Act 1975 (Cth) are social workers and psychologists. They
may help to resolve disputes about children, prepare reports about the family
and the welfare of children, and advise the court about services available to
families. They may be witnesses of fact, or experts, if they give professional
opinions.
• Coroners courts: In coronial inquests, human service workers may be witnesses of
fact if and when deaths related to their work are investigated. They may also work
in the Coroner’s Courts as support workers.
• Specialty courts: for example, domestic violence courts, drug courts, mental health
courts, Koori or other Indigenous courts, family violence courts, child sexual
assault courts. Human service workers may act as witnesses and service the
courts as liaison, assessment, intervention, and support workers.
MYTHS AND REALITIES
Myth: Human service workers have no place in courts that are not friendly towards the
disadvantaged.
Reality: Many of the most signifcant challenges to human rights contraventions have
occurred in courts. The AASW Code of Ethics commands engagement in activities
designed to promote social justice and human rights (for example, section 5.1.3) and
this will commonly involve legal and justice-related work. In addition there are an
increasing number of special courts in which human service workers have signifcant
roles, some of which are designed to improve the ways in which vulnerable and
disadvantaged people are dealt with in legal systems.
Range of tribunals
Tribunals commonly deal with the outcomes of administrative decision making. As a
result, many exist in areas relevant to the human services. Tribunals, operating under
state or federal legislation, vary in terms of their composition, decision-making
powers, and procedures. In some the adversarial system applies, while in others a
more inquisitorial approach is taken, along with ADR modalities. Some permit legal
representation and some do not; in some, the rules of evidence apply and in some
they do not; in some, oral evidence is taken and in others only written submissions
are accepted. Human service workers are often applicants, respondents, witnesses,
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lay advocates, or preparers of documents. Major areas of experience, some returned
to in later chapters, are as follows:
• Administrative review: The Administrative Appeals Tribunal (AAT), a federal
review body established under the Administrative Appeals Tribunal Act
1975 (Cth), can review decisions across the whole area of Commonwealth
administration, some other tribunals, and non-government bodies.
Workers may prepare documents though their employment in government
departments, or assist applicants to prepare and give evidence. The AAT is
made up of eight divisions: General Division, Migration & Refugee Division,
Social Services & Child Support Division, Freedom of Information Division,
National Disability Insurance Scheme Division, Security Division, Taxation
& Commercial Division and Veterans’ Appeals Division (Commonwealth of
Australia, 2015).
• Immigration: The AAT’s Migration and Refugee Division reviews decisions under
the Migration Act 1958 (Cth). Workers may be employees of the Department of
Immigration and Border Protection who investigate and document, or associates
of the groups who support applicants in preparing submissions about visa
applications, refusals, and refugee status.
• Mental health: Matters of involuntary detention and treatment are dealt with by
state Tribunals or Boards. Workers may make applications, assist those who are
the subject of applications, or work with those for whom orders exist.
• Health: A number of bodies, some listed in Chapter 7, generally established under
state or territory legislation, review health decisions and complaints. Human
service workers may be employed by the commissions, assist complainants, or be
the subject of complaint.
• Workers compensation: At state and territory level there are bodies that adjudicate
compensation disputes. Human service employees of return-to-work case
management agencies commonly have involvement with them. Injured human
service workers may themselves be applicants.
• Victims of crime: Some statutory bodies at state level determine compensation
matters for victims, and human service workers may assist the Board or Tribunal
as well as the applicants.
• Substitute decision making for adults: Bodies established under state statutes
make and monitor guardianship and administration decisions. Human service
workers may make applications to these Boards for orders for individuals whose
capacity to function independently is questioned, or work with those for whom
orders already apply.
• Discrimination: The Australian Human Rights Commission and many state
bodies hear complaints about discrimination within their jurisdictions. Workers
may support clients through these processes, or fnd themselves and/or their
agencies, the subject of complaint.
• Social Security: The AAT’s Social Services and Child Support Decision reviews
decisions made by the Department of Human Services (DHS) about social
security, family assistance and child support. Human service workers may assist
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and lodge appeals for individuals, or respond to appeals in their capacity as
employees of DHS.
• Residential tenancies: Bodies established under state and territory legislation deal
with disputes between landlords and tenants. Human service workers may assist
tenants through these tribunal processes. However, increasingly, human service
agencies are themselves landlords and they make applications, for example,
to terminate leases of clients or tenants who have not complied with tenancy
agreements.
• Corruption: There are a number of generally state-established bodies with
power to investigate corruption. For example, the Independent Commission
Against Corruption (ICAC) in New South Wales investigates complaints
about the corrupt conduct of public ofcers. Human service workers may be
applicants, respondents, or lay advocates in relation to these bodies and their
proceedings.
• Employment: Since 1 July 2009, Fair Work Australia has operated as the
national tribunal that resolves complaints about employment matters. Some
employees are not covered by the national system, but instead are covered
by their state system. These include employees of state or local governments
without a registered agreement in the national system, and employees of some
WA employers (Australian Government, n.d.). Human service worker employees
may be applicants or, if they are employers, may be respondents in claims in
relation to unfair dismissal, underpayment of wages, or other matters aﬀecting
employment.
Ombudsmen and complaints bodies
There are also a broad range of Ombudsmen and complaints bodies at both federal
and state level that can handle various complaints and conduct investigations (see
Kennedy 2009). Human service workers may assist clients with bringing a complaint,
or bring one themselves, or be the subject of complaint or investigation.
Court processes, evidence,
and witnesses
Human service workers can prepare for work in courts by familiarising themselves
with court arrangements and processes, the law of evidence, and the functions of
particular types of witnesses.
Court arrangements and processes
Familiarisation with the location and physical characteristics of courts, the personnel,
and the rhythm of activity in them, is an invaluable preparatory activity. Most courts
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and some tribunals in most jurisdictions—for example, the AAT—are open to the
public. Many also have comprehensive websites, including virtual tours of court
rooms or explanatory information. By accessing this online material, watching
proceedings, asking questions of court staﬀ, and reﬂecting on their own emotional
responses, human service workers can test and extend both their confdence and
their composure in court settings.
Evidence
In the human services, sequential common-sense narratives based on deductive social
science modes of enquiry normally apply. The law of evidence deals with information
diﬀerently. Strict legal rules apply to evidence in criminal and many civil proceedings,
but not necessarily to evidence in other types of proceedings. However, it is sensible
to heed these rules as they are intrinsic to legal thinking and may be used to assess
the weight of evidence (Forbes 2002). Evidence collected and presented by human
service workers in accordance with rules of evidence is also likely to be more credible
in court. Being sensitive to these rules makes for better human service information
data collection and interpretation practices. Some general points about evidence
follow:
• Evidence is information elicited in courts, generally through examination
of witnesses, but also in written form via afdavit or statutory declaration,
according to complex, technical, historical, common law rules now overlaid
by legislation. All jurisdictions have evidence legislation, with some moves
made towards a national uniform evidence scheme (Australian Law Reform
Commission, New South Wales Law Reform Commission & Victorian Law
Reform Commission 2006). The legislation in New South Wales, Tasmania,
and Victoria is ‘virtually identical’ to the Commonwealth Act (Odgers 2010,
p. 1) on which the Northern Territory and the ACT have modelled their Acts
(Judicial College of Victoria, 2009–2014). Table 6.1 displays the main current
piece of legislation in each jurisdiction, although some also have additional
special legislation (for example, Evidence (Children and Special Witnesses) Act
2001 (Tas)). Some of the provisions of the Commonwealth legislation apply to
all Australian courts.
• In the Australian adversarial system, evidence about the particular situation is
elicited and controlled by both parties, each attempting to satisfy the burden and
standard of proof that applies. By contrast, in an inquisitorial system, the court
itself may elicit evidence.
• The party making the claim generally has responsibility for putting forward the
evidence to prove their claim.
• Witnesses are generally only allowed to give evidence of facts, of which more is
said below. Opinion evidence, where interpretation of or inference from facts is
involved, is the province of expert witnesses. This is elaborated below.
• Evidence may be oral, documentary, or real. Real evidence can be experienced
directly by the court. For example, it may be shown a knife or visit a location.
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• Although the rules of evidence permeate legal thinking, whether or not they
apply in non-criminal proceedings will depend on the relevant legislation. For
example, under the Workers’ Compensation and Injury Management Act 1981
(WA) s 145D and the Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)
(c) they have been abrogated. Conversely, they do apply to proceedings under the
Community Protection Act 1994 (NSW) s 14.
• Evidence varies as to admissibility and weight. The law of evidence is largely
concerned with allowing into court information that is material and relevant,
while excluding that which is unnecessarily prejudicial. Relevance is a matter
for the court to determine and it hangs on whether evidence, either direct or
circumstantial, helps to prove or disprove a fact in issue. If evidence is ruled
admissible, it may be accorded greater or lesser weight depending in some
part on the credibility of the witness who provides it. Many human service
workers who testify are frustrated when their narrative explanations of events
are interrupted and constrained by lawyers. They may also be distressed when
their evidence is not given the weight they think it warrants. Usually, the weight
given to particular evidence will not be known until the court makes its fnal
decision.
• A court may accept that a witness’s evidence is honest, but nevertheless still
conclude that their evidence is insufcient to meet the standard of proof required
for a particular legal issue.
TABLE 6.1 EVIDENCE LEGISLATION

Jurisdiction	Legislation
Cth	Evidence Act 1995 Evidence Amendment Act 2008
ACT	Evidence (Miscellaneous Provisions) Act 1991 Evidence Act 2011
NSW	Evidence Act 1995
NT	Evidence (National Uniform Legislation) Act Evidence Act
Qld	Evidence Act 1977
SA	Evidence Act 1929
Tas	Evidence Act 2001 Evidence (Children And Special Witnesses) Act 2001
Vic	Evidence Act 2008 Evidence (Miscellaneous Provisions) Act 1958
WA	Evidence Act 1906

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A youth worker was dismissed from his employment ‘on the basis of allegations relating
to inappropriate work practices, disobeying reasonable instructions and inappropriate
behaviour with clients’. During the unfair dismissal hearing, eight human service workers
were called to give evidence of the worker’s behaviour and the potential consequences
if the worker was re-employed. The Industrial Commission’s findings in relation to
their credibility included the following comments: ‘honest but vague’, ‘honest witness
whose evidence was accepted’, ‘supportive … but evidence was coloured to some extent’,
‘unreliable … because of inconsistencies … and inability to substantiate assertions’, ‘a
witness of credit although aspects … did not accord with the weight of evidence’ and
‘honest and credible’.
The Salvation Army v Mejia-Rodriguez—Appeal [2003] SAIRComm 65 (14 November 2003)
• There are certain classes of witnesses about which the law has traditionally
been cautious, unless their evidence is corroborated or verifed by others. The
testimonies of complainants in sexual assault cases, and of children generally,
are two such examples. Legislation has now generally abolished the old common
law requirements about corroboration warnings to the jury in such cases—for
example, the New South Wales Evidence Act 1995 s 164 does this, but the
distrust may still be evident in legal attitudes.
• There is a general rule precluding the admissibility of hearsay evidence in courts,
especially in criminal cases. That is, second-hand versions of events in question
are excluded, and evidence from witnesses who have direct knowledge and can
be cross-examined in court is favoured. For practical reasons, there are now
many technical amendments to this general rule and some hearsay evidence
is allowable. However, there may be legal argument about the admissibility of
specifc evidence in particular cases. Much of the evidence that human service
workers can oﬀer is hearsay—for example, a client tells a worker about something
that has happened to them or the worker hears about an assault on a child.
Their evidence may fall within exceptions to the hearsay rule. For example, they
may hear confessions from alleged oﬀenders, or have ‘recent complaint’ evidence
(Cossins 2002) through contact with victims of sexual assault. There are two
implications of this. First, notes should be taken carefully and immediately as
soon as this sort of evidence is obtained. Second, this human service worker
evidence may necessarily be the subject of legal argument. If it is, taking the
argument personally is a waste of precious emotional energy.
• There is another general rule precluding similar fact evidence. ‘Such evidence
is generally excluded in criminal proceedings because of the risk a person will
be judged for their past conduct and not the crime with which they have been
charged’ (AHPRA 2012). However, this rule too may be altered by legislation.
Under the Health Practitioner Regulation National Law s 149, the Psychology
Board of Australia can consider notifcations made to them that ‘suggest a pattern
of conduct’ when deciding whether or not to refer matters to the Australian
LAW IN
PRACTICE
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Health Practitioner Regulation Agency (AHPRA) for disciplinary proceedings.
In Queensland examples, the Evidence Act 1977(Qld) allows for the possibility
of similar fact evidence (s 132A) and, ‘relevant evidence of the history of the
domestic relationship’ is admissible in some domestic violence matters (s 132B).
• It is important in the context of sexual assault to be aware that certain types
of evidence are protected by legislation from disclosure in court, as discussed
in Chapter 5. For example, in South Australia, the Evidence Act s 67E protects
counsellors and therapists from disclosing communications relating to victims
of a sexual oﬀence if they are made in a therapeutic context, on the grounds of
public interest immunity. Similar legislative provisions exist in other states except
Queensland.
• The law also has a long tradition of rejecting character or propensity evidence,
especially in criminal cases. That is, evidence that goes beyond the specifc facts
of the immediate proceedings and shows the accused to be generally a person of
bad character is likely to be inadmissible.
• Historically, the law has struggled to respond to the challenges persons with a
disability face in participating in legal proceedings, especially when giving evidence.
The Australian Law Reform Commission (2014) made recommendations for
legislative amendments which included recognising the entitlement of witnesses
‘to give evidence in any appropriate way that enables them to understand questions
and communicate answers’; and providing for the right of witnesses ‘to have a
support person present while giving evidence, who may act as a communication
assistant; assist the person with any difculty in giving evidence; or provide the
person with other support’(see Recommendations 7–7 and 7–9).
The rules of evidence are a mystery and a frustration to many people outside the
law. However, human service workers have a particular duty to reach a resolution
in their thinking about the rules because their own well-being and sometimes that
of their causes may be at stake. Remember to distinguish between an objective
criticism of the rules and an emotional, subjective rejection of them. When human
service workers adopt the latter position, a vicious cycle ensues. Their eﬀectiveness
and credibility in the court system are reduced and they in turn feel increasingly
victimised and estranged. It is possible and empowering to take a critical, objective
position on the rules, while learning to manage their practical requirements more
adeptly.
D, from far north Queensland, had a criminal history including instances of domestic
violence that had occurred some years earlier. He had worked as an Operational Officer
with Queensland Health for seven years, and wished to continue in that employment.
He sought a Suitability notice (blue card) under the Commission for Children and
Young People and Child Guardian Act 2000 (Qld) for cultural and employment reasons.
He was issued with a negative notice prohibiting him from working in any category
of employment or business regulated by the Act. He appealed the decision in the
Queensland Children Services Tribunal, representing himself, but in the Tribunal’s view,
did not advocate his own position clearly or persvasively.
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A social worker O also gave evidence on D’s behalf. Her evidence was detailed
and credible and was critical of the Tribunal’s ultimate decision to grant D a
positive notice.
Re DAD [2007] QCST 25 (25 June 2007)
Witnesses
Witness roles and their relevance to the human services are explored a little more
fully here.
Witness of fact
These witnesses testify to what they have direct evidence of; what they saw or heard
or otherwise acquired through their f ve senses. They cannot give opinion evidence
other than on matters of everyday experience. Anyone can be a witness of fact if
they have relevant evidence to give. An example is where a worker in a residential
establishment witnesses a f ght. If charges are laid and a trial results, the worker
might be called as a witness by the prosecution or the defence and cross-examined
about the event. The worker will be allowed to give evidence about what they saw
and heard but any opinions, professional or personal, that they may hold about the
situation will not be permissible.
Re ect
Think more about the situation described above. What is most important here is not whether the
worker’s interpretations should be rejected, but rather how witness roles are categorised in law.
Assume the worker has relevant tertiary qualif cations and was the only person (apart from the
combatants) who witnessed the f ght. Why might the evidence of what they saw or heard be so
important? What issues might arise if they did give personal or professional opinions as part of
their evidence?
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Expert witness
These witnesses give opinion evidence. Just because these witnesses are called ‘expert’
does not mean that ‘witnesses of fact’ are not experts in their work. The term ‘expert’
here is a legal one denoting a particular function of the witness. Under common
law and legislation, expert witnesses can assist the court by drawing inferences from
evidence, explaining technical subjects, giving expert factual evidence, or giving
specialist hearsay evidence. Traditionally they have been called by one or other side
in a case, although there is a move in some arenas to court appointed experts (for
example, in negligence, Commonwealth Treasury [Ipp Report] 2002). Courts may
require experts to confer or to clarify those issues on which they agree or diﬀer
(see for example Supreme Court Civil Rules 2006 (SA) R 213). Some courts or
tribunals may have issued practice directions in relation to expert witnesses. These
may include directions that expert witness have ‘an overriding duty to assist the
Tribunal impartially on matters relevant to the expert witness’s area of expertise’;
that their ‘paramount duty is to the Tribunal and not to any party to the proceedings
(including the person retaining the expert witness)’; and that an ‘expert witness is not
an advocate for a party’ (New South Wales Civil & Administrative Tribunal, 2014,
clauses 11, 12 and 13).
Courts have been long troubled by experts for many reasons and the controversies
about them continue (see, for example, Freckelton 2005). To start, there are
problems of assessment. How is expertise in an area to be determined; does a feld
of expertise really exist and how can an expert be recognised? Experts may engage
in battles that confound rather than assist courts, and they are expensive. Their
evidence and conﬂicts may consume enormous amounts of court time. Historically
experts have not been permitted to comment on the ‘ultimate issue’ in any case (for
example, defendant motivation or state of mind at the time of the alleged oﬀence),
as this is the question for the court to determine. Although legislation such as the
Commonwealth Evidence Act 1995 s 80 has abolished this rule, legal sensitivities
about expert evidence that addresses the central legal question may still exist.
Likewise, courts are touchy about witnesses being called to give expert evidence
about what they consider to be common knowledge and thus within the purview
of the court. The concepts and language of much human service activity do not
seem technical or unfamiliar to others, and can appear to be within the ordinary
knowledge of laypeople. Thus courts may be disinclined to see a need for human
service expert evidence. Again, this common law rule has been abolished by some
legislation such as the Evidence Act 1995 (Cth) s 80, but vestiges of it may remain
in legal attitudes. Interestingly, specialised knowledge about the nature of sexual
oﬀences or the impact of sexual abuse on children and their subsequent behaviour
are areas that have recently been recognised in some Australian jurisdictions, and the
giving of this sort of expert evidence has been enabled legislatively (Freckelton and
Selby 2013, pp. 200–3).
Ultimately, questions about whether a feld of expertise exists, whether it will help
in a particular case and whether or not a particular witness qualifes as an expert in a
case will be determined by the court. A worker may qualify as an expert in one case
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and not in another. This is a surprise to many professionals who are accustomed
to their expertise being self or peer determined. Expert witnesses generally are
very experienced and may or may not hold formal qualifcations. It is important to
remember that it is the court, not the experts, which ultimately decides which facts
and which inferences or opinions are the most convincing.
Many human service workers actually fnd themselves in hybrid witness positions,
more common in tribunals than in courts, which result directly from their professional
responsibilities. As outlined before, many workers operate in jurisdictions where the
rules of evidence have been abolished and they testify to both facts and opinions.
So, for example, a worker covered by the Children and Young Persons (Care and
Protection) Act 1998 (NSW) s 93, which abrogates the rules of evidence, may be
called to testify about a child’s situation. They may be questioned about what they
saw and heard during interviews and in the family house—that is, they will give fact
evidence. They may also be asked to draw a conclusion about the state of the house
and the children in it. However, despite the invitation to give an opinion, they still
will not have expert witness status in the strict legal sense, and need to be mindful of
overstepping that invitation. The witness of fact giving opinions is in an ambiguous
position legally, and one that tends to exercise both courts and workers (Barker and
Branson 2000).
Human service workers, psychologists apart, have seldom been used as expert
witnesses in Australia—in contrast to the USA, where forensic social work is an
active industry (for example, see Barsky 2012; Pollack 2003). Charlesworth (1993,
p. 6-2231) puts this down to lack of social work interest in the task, lack of demand
by lawyers for their services, limited time and encouragement for employees to take
on the task, and a small human service private practice sector. In addition, she notes
the inclusive character of social work knowledge, which is even more a problem for
the wider spectrum of human service workers. This makes it difcult for lawyers and
courts to know what unique and specifc expertise these workers have, and in the
past they were likely to fall foul of the common knowledge rule. To give an example
of how they may be used, a social worker was briefed to give expert evidence on
the extent of social work practice recognition of child sexual abuse in the 1960s,
in Radnedge v South Australia (1997) 192 LSJS 131. Psychologists are used as
expert witnesses more frequently, and may be called upon to give expert opinions,
for instance, as to the existence, extent or cause of psychological injury in those they
have treated or assessed (Finch, Guthrie & Henderson 2008; Allan and Davis 2010).
If workers are called as expert witnesses, the strength of their testimony appears to
be more inﬂuential with the jury in child sex abuse cases, than the coherence of their
testimony or their credentials (Klettke and Powell 2011). This research fnding may
provide some small comfort to human service workers who feel as if they have no
status in legal arenas.
Some courts have specifc requirements that apply to written expert reports being
relied upon as part of legal proceedings. For example, the South Australian Supreme
Court requirements include obligations to ‘set out factual assumptions forming
the basis of the report’ and to ‘distinguish between objectively verifable facts and
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matters of opinion that cannot be (or have not been) objectively verifed’ (Supreme
Court Rules 2006 (SA) R160). Written reports are discussed more broadly below.
Being called to appear
Human service workers may agree to appear, or be given notice, or be subpoenaed.
A subpoena is ‘a court order issued at the request of a party to a case who believes
that a person, who is not otherwise involved in the legal issue, possesses relevant
documents or information’ (AASW 2013a). As explained in the previous chapter,
they must appear if subpoenaed. Some workers prefer to be subpoenaed rather than
appear voluntarily because that process may mitigate breaches of confdentiality.
Because human service workers will usually be called by one side to the dispute in
adversarial proceedings, the legal team for that side has a vested interest in them
performing well and can provide legal assistance. It will usually be helpful for the
worker to contact the lawyer calling them before appearing at court to discuss their
evidence and the process generally. In tribunal proceedings where there are no
lawyers or only some parties have them, human service workers will need to be more
self-reliant when they appear.
Preparing court and tribunal reports
A patient was treated by a psychologist. The psychologist then prepared a report for
doctors in relation to the treatment she had provided which included information about
the patient’s former husband and their relationship. The patient’s husband subsequently
complained to the AHPRA that the psychologist’s report had stated
a factual opinion as to [his] conduct … that is, that he engaged in horrendous abuse
without specifically reporting the source of the information which led her to reach that
conclusion; and [t]hat she uses language which is overly emotive.
In legal proceedings brought by the Psychology Board of Australia, the Victorian Civil and
Administrative Tribunal considered the report and agreed. VCAT noted
Given the often personal and sensitive nature of material contained in psychological
reports, it is important that reports present material precisely, so that facts can be
distinguished from hearsay, professional opinions and interpretation and that they are
written in a respectful and non-discriminatory manner.
The psychologist was found to have engaged in unsatisfactory professional performance
and was cautioned.
Psychology Board of Australia v Costantino (Review and Regulation) [2013] VCAT 586 (24 April 2013)
Depending on the legal forum, there may be ‘limited formal guidance’ as to
structure for workers required to prepare written reports, leaving workers ‘to rely
largely on their own initiative to determine how to approach their task and with
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what rigour’ (Crawshaw, Purewal & van den Akker 2013, p. 1230). Without this
rigour, workers may not be alert to unintentional gender or other stereotyping or
judgments that may subsequently become evident in both how they assemble and
describe relevant facts, and report any recommendations or conclusions (Cohen and
Segal-Engelchin 2000). What follows is a list of general principles about reports,
many of them client related, which are given orally or in writing to courts. As with
giving testimony, there are specialist references that attend more fully to this issue
(for example, White et al. 2015). The principles of report preparation will be ﬂeshed
out by the practices and protocols of the courts and organisations involved, and by
human service practice knowledge and experience. Preparing reports in light of the
obligations contained in professional associations’ Codes of Ethics will assist workers
to ensure those reports reﬂect an ethical, competent approach (for example, AASW
5.2.5 (c)). The AASW, the Federal Magistrates Court and several other centres have
developed their own fact sheets which may be of assistance (AASW 2013b).
• Summary information about the report—for example, date, client name, agency,
and so on is clearly listed on the front or at the top.
• The purposes of the report are clearly explained.
• The writer is aware of the legislative context in which the report is written and
complies with any specifc legislative requirements, including properly completing
and executing statutory declarations or afdavits (see for example Idris, Hayat
Adam [2004] MRTA 574).
• The client’s social and service context is acknowledged.
• Information sources and their limitations are acknowledged.
• Content is accurate and precise.
• Content is neither duplicated nor assumed.
• Content is balanced and comprehensive.
• There is a logical sequence of headings.
• Fact and opinion are distinctly separated.
• Opinions are supported with and justifed by evidence.
• Technical terms and jargon are avoided, and if they must be included, they are
explained.
• Gratuitous, biased, or discriminatory language is avoided.
• Complex situations, events, or relationships are outlined as plainly as possible,
perhaps in dot point form, or with the assistance of visual aids such as tables.
• The style, language, and content are chosen with the readers’ rather than the
writer’s needs in mind.
• The style is clear, concise, and unambiguous.
• The style and tone appear objective.
• Proofreading and editing have been carefully attended to.
• Conclusions are based on the data, ﬂow logically from it, and are conceptually
and theoretically defensible. Writers need to give attention to matters of degree
(Carson 1990, p. 49) or in other words ‘strength of opinion … [expressed through]
graduated scales of concern[s]’ (Stevens 2003, p. 24).
• Authorship and title or position are evident.
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Are recommendations to be included in court reports? This will depend very much
on the legislation, if any, under which the report is prepared and the preferences of
the court. It may be possible, desirable and respectful in some jurisdictions to outline
a range of possible options to the court and the advantages and disadvantages of
each rather than making a single recommendation. However, in other courts it may
be desirable and necessary to make frm recommendations based on the evidence
in the report. Writers may also need to inoculate themselves against distress when
their recommendations are not followed. Courts weigh all considerations in decision
making, and there may be contrary evidence about which individual witnesses have
no knowledge.
The Psychology Board of Australia alleged a psychologist prepared
what purported to be Initial Reports and Assessment Reports to [the Victims of Crime
Assistance Tribunal] on the basis of a single [short] interview with clients; and without
taking any or sufficient time to obtain adequate histories and form properly informed
clinical judgments.
After reviewing considerable evidence from both the psychologist and witnesses called
on behalf of the Psychology Board, the Victorian Civil and Administrative Tribunal held,
amongst other findings, that this amounted to professional misconduct. The Tribunal’s
judgement noted
no psychologist can responsibly form a view sufficient to complete a VOCAT report in
those short time frames. Information obtained via interview and appropriately selected
assessments needs to be collated and professional experience brought to bear before
arriving at a diagnosis. This usually occurs over several hours and is unlikely to be instant.
In a relatively simple case, a provisional diagnosis would be feasible after an hour …
A treatment plan should be thoughtfully conceived not pulled off a shelf … However …
reports based on multiple interviews allowing for comprehensive diagnosis and an agreed
treatment plan are much preferred.
Psychology Board of Australia v Greco (Review and Regulation List) [2014] VCAT 940 (11 August)
Preparing to appear
Attitude and presentation of self
Most people, not just human service workers, are apprehensive about testifying
in court. Given this, it is sensible for those who are called to prepare themselves
mentally. Part of this process involves accepting that courts are a kind of stage
and that they, along with other witnesses, will have to perform. Belief in the
integrity of one’s position is not enough to carry the witness role. It is equally
necessary to think about presentation, projection of confdence, and perception
by others. Carson (1990) emphasises the signifcance of stance, appearance,
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speech patterns, use of eyes, and prefatory phrases to sustain others’ interest and
manage interruptions.
Appearance is a vexed matter. The AHPRA provides the following advice: ‘Dress
appropriately, Court is a formal occasion. Most professionals in the courtroom
will be wearing a suit’ (AHPRA 2013). Carson (1990, p. 10) proposes ‘sober
clothes’. Vogelsang (2001) makes reference to hair styles and jewellery. These sorts
of suggestions might be taken as encouragement to present falsely. The obvious
rejoinder is that adaptability and integrity are not mutually exclusive. Workers must
decide if personal ideology and aﬀront are to be given priority over or distract from
the matter that brings them into court. Adaptability may produce the result that
the worker desires, on behalf of the client or the cause, while stubborn adherence
to ‘normal’ presentation style may help defeat it. After all, appearing in court is
not a usual experience for most workers and it does call on unusual responses. It
is worth recalling again the diﬀerence between objective criticism of systems and
a subjective rejection of them. A worker can go into court with a critical mental
set and perform well because they are intellectually open and alert. Workers who
emotionally reject the process are more likely to be confused and defeated by it.
Managing concerns about confdentiality
As explained in the previous chapter, human service witnesses can be compelled by
subpoena to appear and give evidence unless they have legislative protection against being
called. But courts will weigh up public interest concerns against those of confdentiality
before compelling witnesses. It was also explained in Chapter 5 that some legislation
will provide immunity against civil suits for breach if workers give evidence. Many of the
advisory points by Davidson (2002) and the Australian Psychological Society (2011)
for psychologists faced with a subpoena apply more generally:
• It is respectful to inform the client about the subpoena.
• Provide only the information that is being asked for in the subpoena.
• Check the validity of the summons, and if it is ﬂawed, challenge it.
• Write to the court about confdentiality, and other concerns about information
release.
• Help the court to limit and specify the information that is really relevant.
• Write to the party issuing the subpoena explaining what the desired limits are
and why on information sought.
• Seek legal advice. (Employees should receive this through their employer
organisations.)
• Tell the truth in court and do not attempt to answer in a way that might be
perceived to most assist the client.
Getting organised
Perhaps the most important preparatory activity for witnesses is to revise their own
work relevant to the case and clarify their justifcations for intervention or action.
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It is important to be clear about what happened, why, in what sequence, and where.
Challenges and questions can be anticipated. For example, the witness’s qualifcations
may be a point of vulnerability, or there may be professional disagreements about
how a client has been handled, or weaknesses in the way an issue has been managed.
All these things are facts of life, not to be denied and hidden, but confronted so that
the most sensible answers can be oﬀered if they are pursued in court. If a report has
been written, the witness must be familiar with it. Files and notes should be put in
order, but not amended, for taking into court, even though they might not be used
during testimony. A comprehensive curriculum vitae (CV) for the witness should be
available. This may be required in court, particularly if the witness is being called as
an expert. Even if a CV is not requested, the process of compiling it helps witnesses
to review their own qualifcations and scope of expertise, which is in itself useful
psychological preparation.
It is crucial that witnesses are briefed by the lawyers who have called them and
that the hearing process is fully explained; in a court, this will mean an overview
of examination-in-chief, cross-examination, and re-examination. Possible areas of
concern to both the human service witness and lawyers can be aired at this stage and
prepared for. It is in the interests of the human service worker to initiate this contact
if the lawyer does not.
For human service workers going into court as part of their statutory work, a
number of pointers are oﬀered:
• Be clear about your mandate from your agency and its policies and procedures.
• Request directions from the court about your role and its expectations of you.
• Get advice from within the agency about unanticipated issues and questions of
resourcing.
• Have a manager in court to assist if the case is complex and or sensitive.
• Ask the agency to provide you with legal advice and support. Understand the
possible involvement and role of other experts and your agency’s position on these.
Giving evidence
Skills in testifying come from experience. The skills are covered more fully in
specialist literature (for example, Carson 1990; Vogelsang 2001; Watts 2004; Davis
2007; Seymour and Seymour 2007; Stevens 2007; Barsky 2012). They are also
likely to be the subject of specialist in-service training or post-qualifying professional
development. However, the following list of general guidelines may encourage
thinking about the task:
• Project your voice and present as confdently as possible.
• Take time to think and answer.
• Remain calm and polite, and avoid becoming defensive.
• Try to rely on memory, but ask to refer to notes if necessary.
• Adopt an attitude and demeanour of trying to help the court; the adjudicator in
turn is more likely to assist the witness in coping with the examining lawyers.
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• Maintain an open, nonpartisan manner without conceding on your own
conclusions.
• Do not guess at answers.
• If you do not understand the question, say so.
• Say ‘I do not know’ when this is so.
• Listen fully to questions in all their complexity and answer each part carefully.
• Think very carefully before answering leading questions that promote a particular
response.
• Answer only the questions put unless the question forces an inappropriate ‘yes’
or ‘no’ response; if that happens, explain that a ‘yes’ or ‘no’ is not possible, and
then answer.
• Do not anticipate future questions by adding extra information in early answers.
• If previous testimony is misinterpreted in a new question, correct it before
answering.
• Avoid ‘sugar-coating’ evidence, perhaps because it concerns a client or someone
who is in court (Barker and Branson 2000, p. 46).
• Limit responses to your own area of expertise and resist answering questions
beyond it.
• Stevens (2003) also advises witnesses to behave and speak discreetly in court
waiting areas where they may be observed both before and after giving evidence;
to accept that their own performances may disappoint them; and to resist taking
the process too personally.
Accompanying others attending court
Human service workers frequently assist others who are attending court. For example,
a case worker may accompany a victim of family violence giving evidence about
assaults. A case manager may accompany a young person charged with an oﬀence.
A worker may support a victim of a crime in developing a victim impact statement, or
another person making a discrimination complaint before a tribunal. In these cases,
the worker will be reassuring, explaining, interpreting, liaising, and counselling, but
of course never giving legal advice. These roles are all reasons why it is important that
workers can navigate their way competently around court buildings, personnel, and
processes. The concerns that human service workers may have about court processes
may be similarly preoccupying those they are assisting. It is critical for both their
own well-being, and that of their clients, that workers have a reasonable knowledge
about courts and the way they work. The trick for workers is to harness their own
anxiety in the interests of empathy, while not infecting other people with a negative
or hostile mental attitude.
This chapter started with tales of woe about the human services and court work.
It ends on notes of optimism about how the process can be made less intimidating,
and even exciting, if workers understand it, their roles in it, and the challenge of
‘performing’.
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Key points for practice
• Court work requires mental priming and acceptance of different professional
traditions and approaches.
• The different cultures of law and human services work will be exhibited and perhaps
exacerbated in courts.
• Courts are the home ground of another professional group and it is normal for
human service workers to be unnerved by them.
• Courts are the public arena for a joust between adversaries and confrontation,
difference, and challenge are the norm.
• The law of evidence is technical and complex.
• Recognise these professional differences but resist stereotypical perspectives on foe,
friend, wrong and right. Lawyers and human service workers are sometimes on the
same side and share the same views about outcomes. Human service workers are
sometimes on the side of the ‘authorities’ facing lawyers who are advocating for the
‘victim’.
• Human service workers are not in courts as lawyers and should not judge themselves
or be judged against lawyers’ standards. They assist the court on matters within their
human service experience and expertise. They should prepare, give evidence, and
be evaluated according to good human service practice standards.
• Having good-quality human service evidence is half the battle of work in courts and
tribunals.
• Reports and other documentation prepared for courts should comply with all the
usual principles of good human services information management.
• Witnesses must perform. This requires preparation, practice, attitudinal ﬂexibility,
and resilience.
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Some useful websites
Courts and tribunals
Commonwealth
www.aat.gov.au
www.aat.gov.au/
migration-and-refugeedivision
www.familycourt.gov.au
www.federalcourt.gov.au
www.humanrights.gov.au
www.ssat.gov.au
States and territories
www.courts.act.gov.au
www.courts.nt.gov.au
www.courts.qld.gov.au
www.courts.sa.gov.au
www.courts.tas.gov.au
www.courts.vic.gov.au
www.lawlink.nsw.gov.au
www.supremecourt.
wa.gov.au
Ombudsmen
Commonwealth
www.ombudsman.gov.au
States and territories
www.ombo.nsw.gov.au
www.ombudsman.act.
gov.au
www.ombudsman.nt.
gov.au
www.ombudsman.qld.
gov.au
www.ombudsman.
sa.gov.au
www.ombudsman.tas.
gov.au
www.ombudsman.vic.
gov.au
www.ombudsman.
wa.gov.au
References
Allan, A. and Davis, M. (2010).
‘Psychologists as expert witnesses in
courts and tribunals.’ InPsych 32(4):
10–13.
Australian Association of Social Workers
(2010). ‘Code of Ethics.’ Retrieved 23
November 2014, from www.aasw.asn.au/
document/item/1201
Australian Association of Social Workers
(AASW) (2013a). Ethics and Practice
Standards Guideline—‘You’ve been
served!’ Responding to a Subpoena.
Retrieved 29 May 2015, from www.aasw.
asn.au/document/item/4681
Australian Association of Social Workers
(AASW) (2013b). Ethics and Practice
Standards Guideline—Writing Court
Reports. Retrieved 29 May 2015,
from www.aasw.asn.au/document/
item/4683
Australian Government Fair Work
Ombudsman (n.d.). The Fair Work
System. Retrieved 18 June 2015, from
www.fairwork.gov.au/about-us/the-fairwork-system
Australian Health Practitioner Regulation
Agency (AHPRA) (2013). 21 Tips for
a Successful Performance in the Witness
Chapter 6: Courts, Tribunals, and the Human Services 145
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Box … LPN21. Retrieved 29 May 2015,
from www.ahpra.gov.au/Publications/
legal-practice-notes.aspx
Australian Health Practitioner Regulation
Agency (AHPRA) (2012). Consideration
of Similar Fact Evidence LPN
8. Retrieved 29 May 2015, from www.
ahpra.gov.au/Publications/legal-practicenotes.aspx
Australian Law Reform Commission (ALRC)
(2005). Uniform Evidence Law. Report
No. 102. Canberra, ALRC, NSWLRC &
VLRC.
Australian Law Reform Commission, New
South Wales Law Reform Commission
& Victorian Law Reform Commission
(2006). Uniform Evidence Law.
Canberra, AGPS.
Australian Law Reform Commission (ALRC)
(2014). Equality, Capacity and Disability
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Chapter 6: Courts, Tribunals, and the Human Services 147
Kennedy, R., Richards, J., & Leiman, T. (2012). Integrating human service law, ethics and practice. Retrieved from http://ebookcentral.proquest.com
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