Law Letter Hub Articles
Trauma-Informed Practice at TASCAT
1 December 2023
In early 2022 the Sexual Assault Support Service (SASS) provided feedback regarding existing processes of the TASCAT with respect to trauma informed service delivery. Their feedback invited a review of existing Tribunal service delivery and sought to provide more detailed feedback to the Tribunal in assisting that review. In May of 2022, the President and the Principal Registrar of TASCAT met with representatives from the Sexual Assault Support Service (SASS) for that purpose.
The meeting provided important and helpful advice regarding processes that may lead to the re-traumatising of persons who appear before the Tribunal in different circumstances and capacities but in particular witnesses who may be appearing in proceedings where sexual assault allegations arose.
As a result of the meeting and feedback provided, the Tribunal embarked upon active consideration of where trauma-informed practice could be integrated into its processes and practices. This review was in keeping with the objectives of the Tribunal and the best practice guidelines produced by COAT.
In June 2017, the Council of Australasian Tribunals (COAT) developed a Tribunal Excellence Framework.
At pages 7 and 8 of that framework it states:
To a significant extent tribunals, like other justice institutions, depend upon community support for their legitimacy and so robust and fair tribunal processes that are seen to be fair are important.
Satisfaction with the process of justice has been found to have a measurable effect on society as a whole. Such satisfaction contributes to the perceived legitimacy of the justice system and there is some evidence that it affects the behaviour of citizens, increasing their respect for the law. A large proportion of the public may never see the inside of a courtroom but many citizens will use a tribunal and so the processes, procedures and steps taken by the tribunal to assist its users will affect how they perceive the law and the operation of the justice system.
Measures of public and participant satisfaction with a court or tribunal are a close proxy for the value of procedural justice.
Participant and public perceptions about the fairness of process (i.e. about procedural justice) depend on a complex mix of factors. Moorhead, Sefton and Scanlon (2008)1 found that five process orientated factors contributed to the perception of fairness and hence satisfaction:
a. the expectations of and information provided to, participants;
b. the quality of participation granted to participants (i.e. the extent to which, and the process through which, participants are able to get their story out in a way they view as accurate and fair);
c. the quality of treatment and, in particular, the respect shown to the participant during their time at the tribunal;
d. issues of convenience and comfort including timeliness and efficiency; and
e. judgements about tribunal members and staff – whether they were perceived as helpful and empathetic.
Delivering justice is not simply about predictable, just decisions. The parties who appear before Tribunals and the community have a legitimate interest in procedural justice.
The Tribunal made enquiries of various bodies including the Magistrates Court and Supreme Court as part of its investigations.
Enquiries undertaken by TASCAT revealed that the Office of the Director of Public Prosecutions in Tasmania has a Witness Assistance Service which supports witnesses giving evidence for the State. As part of that service, a Witness Assistance Officer is appointed and that officer will:
- give the witness information about court procedures and legal process;
- provide crisis counselling, debriefing from court and refer the witness to services in the community;
- liaise between the witness and the Director of Public Prosecutions staff;
- take the witness on a tour of the court;
- go to meetings with the witness;
- help the witness prepare a victim impact statement.2
Other States have equivalent services available in criminal matters but no tribunal in Australia runs a similar service for witnesses giving evidence about personal and traumatic events. As a result, TASCAT embarked upon its own research to develop its own trauma-informed practice. The challenge for TASCAT was to develop a trauma-informed practice that is fair to all participants.
After consultation with various stakeholders, TASCAT produced a protocol for trauma-informed practice. The protocol appears as a “fact sheet” on the TASCAT website (220817-Trauma-Informed-Practice-web-version.pdf (tascat.tas.gov.au) and its key points are:
TASCAT acknowledges that given the range of jurisdictions exercised by the Tribunal and the diversity of people involved in Tribunal proceedings, there is a likelihood that many of these people may have experienced complex trauma. For those people, their involvement in Tribunal proceedings can possibly activate re-traumatisation. Accordingly, anyone who believes that participating in Tribunal proceedings may be an activating event, are encouraged to contact the Tribunal registry and advise them so that the Tribunal to engage in its trauma informed practice and procedure.
When a party or witness contacts the Tribunal they can:
- provide their preferred contact details and advice on how they wish to be contacted;
- request assistance in the proceedings, including a support person or an interpreter;
- advise of any particular trauma informed support they may require to reduce the risk of re-traumatisation, for example, seeking to participate in a hearing remotely, or in a different room to another participant; and Participants are also encouraged to provide constructive feedback if they feel the Tribunal has not engaged in trauma informed practice so that the Tribunal can continue to improve. When a party or a witness advises that they require trauma informed support, they can expect Members and staff of the Tribunal to:
- respect their rights and entitlements as a participant in Tribunal proceedings;
- treat them with courtesy, respect, understanding and dignity; and
- take into account, and be responsive to any particular needs or differences they have such as race, indigenous identity, sex or gender identity, cultural or linguistic diversity, sexual orientation, disability, religion and age.
Once the Tribunal receives this advice from a party or a witness the Tribunal registry can, if requested:
- talk to them about what to expect in the Tribunal hearing and their role as a party or a witness;
- advise them about the status of the matter in which they are involved including the hearing date;
- prior to the hearing, give them a tour of the Tribunal’s public areas including; where they will enter the premises, where they will wait prior to giving their evidence, where they will be giving their evidence and where they will take breaks;
- explain the various roles of Tribunal Members and registry staff;
- discuss any concerns they have about their safety while at the Tribunal or giving evidence;
- assist them in requesting the Tribunal Member(s) hearing the matter in which they are involved, to make appropriate arrangements that may be available to them to give evidence, e.g. attending by Audio Visual Link or having a support person in the room;
- provide them with the contact details for appropriate support services;
- assist them in requesting the Tribunal Member(s) hearing the matter to make orders not to publish their name or any information identifying them in any Tribunal notices or determinations;
- assist them in a request to be provided with a copy of any published decision in which they are involved.
The protocol points out Tribunal registry staff are not able to discuss the evidence the party or witness will give and it notes that if they give oral evidence and/or are cross examined about their evidence, they will be given reasonable time to consider their answers and take reasonable breaks as required. The protocol provides contact details of other services that the party or witness can contact if they need further assistance.
The protocol has been reviewed by SASS and Blue Knot and their relevant feedback has been incorporated. All members and staff at TASCAT are aware of the contents and the importance of this protocol with specific training sessions undertaken by Deputy Presidents and Registrars with registry staff.
The Australian Health Practitioner Regulation Agency (AHPRA) have undertaken their own reforms regarding trauma informed service delivery. In the Health Practitioners Stream (HPS) of the TASCAT they have been implementing those review outcomes and have reviewed their own process and procedure with respect to supporting witnesses giving evidence against health practitioners involving alleged sexual assault and/or other boundary transgressions.
The protocol has been applied in the Tribunal. For example, in a recent matter the Tribunal undertook trauma-informed measures where a witness was provided a private room to wait before the hearing commenced and to appear remotely to give evidence with a registry staff member present to ensure the remote connection was maintained and to provide materials from the relevant hearing book when directed by the hearing panel. A representative from AHPRA also sat near the witness whilst they gave evidence. All people in the separate room were visible to everyone in the hearing room; however, the cameras were set so that the witness had limited vision of the participants in the hearing.
The protocol is a significant reform by the Tribunal that it will continue to review to ensure it maintains currency and relevance with changes and reforms that occur in the trauma-informed service delivery field.
Alison Clues
Deputy President, TASCAT
- Moorhead, RL; Sefton, M; Scanlon, L, (2008) Just Satisfaction? What Drives Public and Participant Satisfaction with Courts and Tribunals – a review of recent evidence, Cardiff Law School Cardiff University
- https://www.dpp.tas.gov.au/witnesses_and_victims
