Therapeutic jurisprudence and restorative justice for family violence: expanding the options for responding effectively to violence and other abuse

Alikki Vernon[1], David Moore[2] & Russell Jeffrey[3]

[1] Dr Alikki Vernon, Consultant & Vice President, Victorian Association for Restorative Justice

[2] Dr David Moore, consultant & President, Victorian Association for Restorative Justice

[3] Russell Jeffrey, Manager, Community Conferencing, Neighbourhood Justice Centre & Secretary, Victorian Association for Restorative Justice

The social movement for “restorative practices” in Australia has recently aligned with (i) efforts to deal with abuse in institutional settings and (ii) efforts to address family violence.

For example, the restorative engagement program within the recently concluded Australian Defence Abuse Response Taskforce provided an effective response to the harm caused by workplace discrimination, harassment and bullying, physical abuse &/or sexual assault in an institutional setting.  Lessons from this pioneering work are now being adopted din a national redress scheme.

In a parallel development, the Victorian Family Violence Royal Commission (VFVRC) in 2016 recommended the development a framework and pilot program to deliver restorative options for victims of family violence [Recommendation 122] and to assist young people and families in situations where adolescents are using violence in the home [Recommendation 128].  When used appropriately within well-designed programs, the group conferencing process can support systemic improvements to Victoria’s response to family violence.

Members of the Committee of the Victorian Association for Restorative Justice (VARJ) will describe current innovations using restorative practices to manage cases of family violence, including where court sentencing has been deferred and a case referred to group conferencing.  The presenters will also explain how pilot programs that provide family-systems interventions to address adolescent family violence in the home are being officially coordinated with Victoria’s youth justice group conferencing program.

These emerging practices represent a combination of therapeutic jurisprudence and restorative justice – consistent with 2010 amendments to Victoria’s Sentencing Act.  There are important lessons from these experiences about what might be required in the way of policy development, program management, and the training and mentoring not only of specialist group conference facilitators, but of other professionals involved in the administration of justice.

Biography:

David B. Moore is a Melbourne-based consultant specialising in conflict management and constructive communication across the government-, corporate-, and community sectors.  He is also Principal Consultant to Sydney-based Prime Change Consulting.  David has trained facilitators nationally and internationally, taught at multiple universities in history, politics and law, and published widely on conflict management, change management, and organisational governance. He has recently been special advisor to the Defence Abuse Response Taskforce, work that is now continuing with the Commonwealth Ombudsman and national redress schemes.  David is the current President of the Victorian Association for Restorative justice.

Alikki Vernon has worked as an independent consultant in dispute resolution and restorative practices for over 20 years. Her professional practice includes managing workplace conflict, improving the governance of community and government organisations, supporting mental health case management, identifying effective responses to institutional abuse and family violence,.   Alikki also coordinated the program of dispute resolution at La Trobe University School of Law for a decade.  She is Vice President of the Victorian Association for Restorative Practices.

Russell Jeffrey is currently the Manager of Community Conferencing, Collingwood Neighbourhood Justice Centre (NJC).  Russell qualified and practiced several trades before qualifying as a social worker, and working in both Scotland and Australia.  He was a youth justice group conferencing facilitator with Jesuit Social Services before becoming the state-wide manager, with the Department of Health and Human Services, of Victoria’s youth justice group conferencing program.  He accepted the full-time position of Manager of Community Conferencing at the NJC in 2016 after the success of an earlier secondment.

 

Protecting the rights of trafficked women and children and those forced into prostitution through advocacy and non-adversarial justice

Andrea Tokaji1

1 Fighting for International Justice Foundation

 This paper discusses the current gap in legislation and policy in relation to the trafficking of women and forced prostitution in Australia. International best practice models will be considered through a human rights framework and the proposal for a Women and Children’s Advocacy Centre will be outlined. It will be argued that an Advocacy Centre should address not only the therapeutic needs of survivors, but also provide restorative justice and appropriate dispute resolution processes for victims, and assistance with legal aid. In addition, an Advocacy Centre would operate as a exit program for women in the sex trade. Services provided in such a model would include mediation, dispute resolution and juvenile restorative processes for both survivors and perpetrators of gender based violent crimes – especially rape, sexual assault and sexual abuse – within a therapeutic and supportive case management context to enable a multi-disciplinary approach to the survivor’s rehabilitation and reintegration and the perpetrator’s rehabilitation through cognitive behavioural education diversion. This approach is a theoretical work in progress, and will require all relevant stakeholders support and contributions.

From the despair of Don Dale to a brighter future: how Restorative Justice can lead system change in the Northern Territory

Jared Sharp1

1 General Manager NT, Jesuit Social Services, Smith St, Darwin, NT, 0810 sharpjared@hotmail.com 

This paper will look at the future potential of restorative justice in the Northern Territory youth justice system.

In recent years, court-referred pre-sentence conferences in the NT have emerged as a viable option for young people appearing before the court, prior to being sentenced. Their initial success hints at the enormous potential for restorative justice conferences in the NT if used more broadly.

The paper will consider some case studies of conferences involving Aboriginal young people in the last few years. It will look at impacts of these conferences on the young people concerned, including Aboriginal young people who might have been previously considered too entrenched in the system for a restorative process to be considered. For some of these young people, participation in a conference has been the catalyst for tremendous change, both in terms of halting their offending trajectory, as well as improving their relationships with carers and family.

But are there lessons that can be drawn to guide a future, increased role for restorative justice in the NT youth justice system?

This paper will look at some of the structural changes needed to increase the utilisation of restorative justice conferences in the NT. These include the expert, specialist resources to facilitate the process, assessment criteria, and timeframes for convening a conference.

At the same time, cultural safety of restorative justice processes for Aboriginal young people must be paramount.[1] This paper will look at strategies to make restorative justice conferences a fair and accessible process that Aboriginal young people can participate in. It will look at cultural safety planning and other supports that need to be put in place.

The paper will conclude by looking at the post-Royal Commission landscape in the NT, which could see restorative justice as the norm rather than exception. It will consider the expansion of restorative conferences to other areas such as family conferences for young people in the child protection system. And it will also look at whole-of-system reform to embed restorative justice as the dominant paradigm for how conflicts affecting young people are resolved in the NT.

It will also look at the possible use of restorative justice in schools, in the remote context involving Aboriginal Elders and community leaders, for vulnerable 18-24 year olds in the criminal justice system, to resolve conflict in the youth detention context, and to empower young people to exert positive peer influence through the peer panel model currently in operation in some parts of the United States.

[1] See, for example Daly, ‘Restorative Justice in Diverse and Unequal Societies’ (1999): https://www.griffith.edu.au/__data/assets/pdf_file/0013/50251/kdpaper5.pdf

Biography:

Jared is the General Manager, Northern Territory, Jesuit Social Services.

Jared’s background is mainly as a criminal lawyer specialising in youth justice for the North Australian Aboriginal Justice Agency (NAAJA). In 2012, Jared was extremely fortunate to receive a Churchill Fellowship to consider culturally strengthening initiatives to support Aboriginal young people in the justice system. Jared was also recently awarded a 2016 NT Human Rights Award in the youth category.

Jared has an extensive involvement in mediation and restorative justice, and is passionate about expanding non-adversarial justice approaches, in particular youth justice conferencing in the NT youth justice system.

Jared’s role at Jesuit Social Services includes bringing its highly successful youth justice conferencing model run in Victoria since 2003, to the Northern Territory.

Forgiveness & Apology in the Aftermath of Serious Crime: Restorative Opportunities in Post-sentencing, Prison based Practice

Dr Jane Bolitho1, Ms Jenny  Bargen2

1University Of New South Wales Australia, UNSW, Australia, 2University of Sydney, Sydney, Australia

In this paper we explore the realities of forgiveness & apology an empirical study of 74 victim offender conferences completed by the Restorative Justice Unit in the NSW Department of Justice in a correctional setting, post-sentencing following serious crime (including murder, manslaughter, armed robbery). While restorative justice advocates such as Walgrave (2008) have argued that apology and forgiveness are essential elements in restorative justice processes we offer a revised lens through which to conceive forgiveness and the place of apology following serious crime, by drawing on of literatures from transitional justice to philosophy, psychology, ethics and law.

Biography:

Jane is an active member of the restorative justice and dispute resolution research hub at UNSW Australia where she works as a Senior Lecturer in Criminology. Over fifteen years her research has explored the dynamics of restorative justice focusing on the experiences of victims and perpetrators in youth justice and adult models, in the aftermath of both minor (pre sentencing) and violent crime (post sentencing) cases. Jane is an accredited mediator and a practising youth justice conference convenor.

The Opportunity of Non-Adversarial Dialogue – A practice reflection on Restorative Conferencing in South Australia

Grant THOMAS, Youth Justice Co-ordinator, Conferencing Unit, Youth Court of S.A. 1,

Winnie CHIU, Care and Protection Co-ordinator, Conferencing Unit, Youth Court of S.A. 2

1 Youth Court of South Australia, Courts Administration Authority, 75 Wright Street, ADELAIDE SA 5000, grant.thomas@courts.sa.gov.au

2 Youth Court of South Australia, Courts Administration Authority, 75 Wright Street, ADELAIDE SA 5000, winnie.chiu@courts.sa.gov.au

Adversarial processes by definition and necessity must constrain parties to dialogue limited to the issues in dispute or for adjudication which establish the lines drawn between those parties. The Courts Administration Authority Conferencing Unit in South Australia has carriage of three separate diversionary and non-adversarial processes: juvenile justice Family Conferences child protection Family Care Meetings and adult criminal justice Aboriginal Sentencing Conferences which come together under the philosophy of restorative conferencing in pursuit of social justice outcomes. South Australia has experience from over twenty years brought to these areas of work and the Courts Administration Authority has nurtured and developed these processes to deliver alternative dispute resolution out of a predominantly adversarial environment. The evidence base of all of these processes is that, freed of an adversarial impetus, parties desire and demonstrate that there are important messages they wish to convey to each other which would otherwise be found irrelevant or inappropriate in adversarial proceedings. This paper will describe and analyse the models undertaken and reflect upon practice examples to demonstrate the types of conversations and dialogues which emerge when parties are enabled and empowered. There will be particular emphasis upon the voice of the child and of victims and how the Conferencing Unit has endeavoured through management and procedural measures to best ensure these voices are heard.

Biography:

Grant Thomas is employed by the Courts Administration Authority (CAA). He has worked as a Youth Justice Co-ordinator in South Australian Family Conferencing since its inception in 1994, as a co-ordinator in the Port Lincoln Aboriginal Conferencing program and as Supervisor in the Youth Court Conferencing Unit. His work has included revision and publication of the Family Conference and Care and Protection Practice Manuals and design and implementation of CAA Restorative Justice pilot programs in the adult jurisdictions. He has presented at conferences in Australia and overseas regarding Family Conferencing and Restorative Justice practice. He has also travelled to New Zealand to participate in restorative justice seminars and has presented restorative justice and sexual assault conferencing training in other Australian jurisdictions. Grant has a background in legal practice, in conciliation in the equal opportunity/discrimination field and volunteer work in the youth and human services sectors.

Victim-centred restorative justice: design and implementation challenges at the innovative justice interface

Rob Hulls1, Stan Winford2, Nareeda Lewers3

1 Centre for Innovative Justice, RMIT University, 106 Victoria Street Carlton, Victoria 3053, rob.hulls@rmit.edu.au

2 Centre for Innovative Justice, RMIT University, 106 Victoria Street Carlton, Victoria 3053, stan.winford@rmit.edu.au

3 Centre for Innovative Justice, RMIT University, 106 Victoria Street Carlton, Victoria 3053, nareeda.lewers@rmit.edu.au

Research tells us that the traditional criminal justice process can leave victims feeling marginalised, re-traumatised and with many questions left unanswered.

Currently victims of adult offenders in Victoria face a stark choice between a criminal trial process – or nothing. Yet no single justice response will have every answer for every context, so a diverse range of options is required.  If we are committed to better meeting the needs and interests of current victims and reducing the number of future victims, we need to re-think traditional approaches.

In the process of restorative justice conferencing, the victim is a central participant rather than merely a witness to an event. In a restorative justice conference, the victim has a voice, is able to explain the impact of the offending directly to the offender, and can seek answers in relation to unresolved questions about the offending.

The CIJ is implementing a victim-centred restorative justice conferencing program for those affected by a driving incident resulting in death or serious injury.  Serious driving offences can result in significant psychological trauma for all those affected.  Family relationships can be ruptured and whole communities can feel the effects.  Where there is an existing relationship between the victim and the offender, and/or shared social and community ties, victims may benefit from restorative justice conferencing. As part of the project, a number of conferences will be held and evaluated. This project will extend restorative justice conferencing to the adult criminal law system in Victoria.

This presentation will explore the challenges of moving from theory to practice when implementing a small scale restorative justice pilot, with a particular focus on the implementation challenges that arise when alternative approaches interface with the existing criminal justice system.

Biography:

 

As Victorian Attorney-General between 1999-2010, Rob Hulls instigated significant changes to Victoria’s legal system which saw the establishment of the state’s first Charter of Human Rights. He established specialist courts in Victoria including for Victoria’s indigenous community, for people with mental health issues, for people with drug addiction and for victims of family violence. He also opened up the process for the appointment of people to Victoria’s judiciary to ensure that more women and people from diverse backgrounds were appointed.

In October 2012 Rob was appointed Adjunct Professor at RMIT and was invited to establish the new Centre for Innovative Justice as its inaugural Director.  The Centre’s objective is to develop, drive, and expand the capacity of the justice system to meet and adapt to the needs of its diverse users. The Centre has facilitated the establishment of a multi-disciplinary practice on site with lawyers and social workers together with students providing holistic, wrap-around services to female prisoners in Victoria.

Stan Winford is Principal Coordinator, Legal Programs at the Centre for Innovative Justice where he is responsible for clinical legal education programs and managing a number of the Centre’s research projects, including the Centre’s work on restorative justice and user-centred design.

Stan is a practising lawyer who has held a number of senior roles in government and community legal services both in legal practice and legal policy. Prior to joining the Centre, Stan was Managing Principal Solicitor with the Victorian Government Solicitor’s Office. Between 2007 and 2010, Stan was Senior Legal Advisor to the Attorney-General and Deputy Premier of Victoria and was involved in major reforms to sentencing, criminal procedure and evidence laws. Stan has also been the Principal Lawyer and Legal Projects Officer at Fitzroy Legal Service, where he led law reform campaigns and public interest litigation. Stan has published on justice issues and appeared in national and international media as a legal commentator. He is Chair of the Mental Health Legal Centre and a member of the Victoria Police “Taser” Review Panel.

Nareeda Lewers is the Restorative Justice Project Officer at the Centre for Innovative Justice.  Previously, she worked as a criminal lawyer at Victoria Legal Aid and in the community legal centre sector.  As a legal practitioner Nareeda was involved in therapeutic justice initiatives including the Assessment and Referral Court (ARC), a program at the Melbourne Magistrates’ Court designed to respond holistically to offenders with cognitive disabilities and/or mental health diagnoses.  Nareeda has also worked in clinical legal education and in academic research.  She has published in the area of family law.

A Restorative City for New South Wales – could Newcastle be a model?

Associate Professor John L Anderson1, Dr Nicola M Ross2, Ms Mary Porter AM3

1 Newcastle Law School, University of Newcastle, Callaghan NSW 2308. John.Anderson@newcastle.edu.au

2 Newcastle Law School, University of Newcastle, Callaghan NSW 2308. Nicola.Ross@newcastle.edu.au

3 Former MLA, ACT Legislative Assembly and President, NED Inc.

What future uses are there for the principles of restorative justice in our court system? Reflecting on this question, this paper evaluates the implementation of an alternative approach to traditional criminal justice processing through the creation of a restorative city in New South Wales. This takes account of the models and experiences in Oakland, California, US, Hull, UK, Whanganui, NZ and Canberra, ACT. There are no easy answers to complex challenges and restorative practices should not be viewed in this light; indeed it is no “magic bullet”. However the ACT example can demonstrate the value of bringing the community with you in the introduction of this practice.

Courts do not easily surrender their control and traditions to restorative justice philosophy but it is contended that there is scope for incremental implementation of this philosophy through specialist Children’s and Local Courts established in Newcastle, NSW with the ultimate aim of implementation in all mainstream courts in the state. There have been encouraging findings that restorative justice offers a viable alternative or adjunct to traditional criminal justice processes in terms of victim participation, restitution and reduced recidivism. At the same time there will be limited impact unless there is a major shift in the attitudes and practices of prosecutors and judicial officers in mainstream courts. The theoretical and practical challenges involved extend to appropriate training and education of the key players in the criminal justice system and this includes opening an important dialogue with social work and other social science practitioners to ensure training and education work towards support for restorative rather than punitive practices. Education of criminal justice practitioners on the potential use of restorative justice programs as an alternative to traditional sentencing options, including imprisonment, can be progressed through a restorative city program.

Biography:

John Anderson is an Associate Professor of Law at the University of Newcastle. The overarching concept of his research scholarship is related to questions of unfairness and inequity in the criminal justice system, particularly the sentencing of offenders, sentencing options and treating like cases alike. He has published various books, book chapters, journal articles and conference papers with a focus on evidence, criminal law and sentencing. John is a highly awarded teacher who currently teaches various courses in the law programs, including Criminal Law and Procedure, Advanced Criminal Law and Evidence.

The Family Responsibilities Commission: Community led conferencing in Far North Queensland Indigenous communities – 8 years on

David Glasgow, AM1, Camille Banks2

1 Family Responsibilities Commissioner, Family Responsibilities Commission, PO Box 5438, Cairns, Qld, 4870, david.glasgow@frcq.org.au 

2 Client Manager, Family Responsibilities Commission, PO Box 5438, Cairns, Qld, 4870, camille.banks@frcq.org.au

The Family Responsibilities Commission (FRC) was established as the keystone of the Cape York Welfare Reform Trial in 2008. One of its key functions, and points of uniqueness, is to restore local authority through conferences conducted by Local Commissioners; Elders and other respected members of the five Far North Queensland Indigenous communities in which the FRC operates.

The FRC’s objectives align with the criminal justice system in its aims of reducing drug addiction, violence, and child neglect in Indigenous communities. The FRC, however, differs from other justice strategies in that it embodies a community specific, socially oriented model, integrating community led conferencing, case management and referral to support services.

The premise of the FRC is simple. Community members receiving welfare payments must comply with social obligations to ensure adequate care for children, abide by the law, ensure children are attending school and pay the household rent. Where these obligations are not met, the Commission may conference clients to discuss their issues and offer support. Whilst conferences are first and foremost a support mechanism, decisions available to Commissioners include issuing orders to manage the welfare payments of clients, and requiring clients to attend support services.

This paper explains the FRC’s community led conferencing approach and outlines the challenges and successes of the model experienced since its inception eight years ago as a three year trial.

Against the current context of welfare and child protection reforms, both nationally and in Far North Queensland, the paper examines these challenges and successes in order to consider how the FRC model might evolve as a non-adversarial justice strategy and adapt to a new policy context.

Biography:

Commissioner David Robert Glasgow is a proud North Queenslander, having lived all but two or three years of his life in the north. After admission as a solicitor, Commissioner Glasgow worked with the firm of Roberts Leu and North and soon became a partner. He stayed with the firm for 27 years, and in 1998 was appointed a Magistrate and served in Brisbane and the south-east for the next year. From there a placement in Cairns followed which included a year spent undertaking circuit work in the Cape York Peninsula region and on Thursday Island, where he became familiar with Indigenous communities and aware of their problems and social dysfunction. A transfer to Townsville in the position of Coordinating Magistrate followed. In that role he took a special interest in developing the Murri Court and was instrumental in preparing the functions and procedures of the Murri Court throughout Queensland. His work in the Childrens and Drug Courts in North Queensland further exposed him to the particular problems of Indigenous peoples, many quite young, who appeared before those courts in much greater numbers than those who came from the wider community.

Commissioner Glasgow’s experiences led the Bligh State Government to seek his guidance as they went about implementing the Family Responsibilities Commission model of welfare and social reform in the Cape. Commissioner Glasgow was appointed to the position of Family Responsibilities Commissioner on 25 April 2008. On 26 January 2015 Commissioner Glasgow was awarded a Member of the Order of Australia (AM).

The collaborative problem solving project: ten years on at the NJC

Jay Jordens1

1 Neighbourhood Justice Centre, 241 Wellington Street, Collingwood, VIC, 3066, Austalia

The Neighbourhood Justice Centre’s Problem Solving Process has steadily provided a collaborative approach to complex cases coming before the Court for the ten years of the NJC’s operation. Since presented at the first Non-Adversarial Justice Conference, the NJC problem solving process has further grown and developed to respond to cases of family violence and Children’s Court matters. Problem solving has earned and retained the trust and confidence of its stakeholders from within the NJC and more widely in the local community.

This presentation first situates the problem solving project within the prevailing social meta-narratives that define the landscape of social justice and determine the scope of what it possible in the care and rehabilitation of people in contact with the justice system. The presentation then sets out the core concepts and skills routinely applied in collaborative problem solving at the NJC. In turn, it considers from a practice-based perspective, how collaborative restorative approaches can be applied in the context of family violence, and the vexed issue of intimate partner violence and restorative justice.

Architect and convenor of problem solving at the NJC Jay Jordens will explain and illustrate collaborative approaches to solving complex problems in plain and accessible language. Jay will draw on his ten years of practice-based experience in this unique problem solving project, as well as referencing theoretical, legal and discursive influences on the development of the process.

Biography:

Jay has worked at Neighborhood Justice Centre since it opened, and plays a pivotal role as the conduit between the Court, services and the local community, running collaborative problem solving processes informed by restorative practices. Previously, Jay worked in the Victorian community sector in many roles, in Cambodia as human rights advocate and investigator, and in health, harm reduction and most recently justice sector reform in Vietnam.Jay was awarded a 2016 Australian Government Endeavour Research Fellowship to undertake research on drug treatment and law reform in Vietnam, from which he has just returned.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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