Non-Adversarial Justice

352 Pages·2014·2.151 MB·English

by  Michael Arie King

NON-ADVERSARIAL JUSTICE

NON-ADVERSARIAL JUSTICE
2nd edition
Michael King
Magistrate, Magistrates Court of Western Australia
Arie Freiberg
Emeritus Professor, Faculty of Law, Monash University
Becky Batagol
Senior Lecturer, Faculty of Law, Monash University
Ross Hyams
Senior Lecturer, Faculty of Law, Monash University
Foreword
The Hon Wayne Martin AC
Chief Justice, Supreme Court of Western Australia
THE FEDERATION PRESS
2014
Published in Sydney by
The Federation Press
PO Box 45, Annandale, NSW, 2038.
71 John St, Leichhardt, NSW, 2040.
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Website: http://www.federationpress.com.au
First edition 2009
Second edition 2014
National Library of Australia
Cataloguing-in-Publication entry
Non-adversarial justice / Michael King, Arie Freiberg, Becky Batagol, Ross Hyams.
Second edition.
Includes bibliographical references and index.
ISBN 978 1 76002 022 4 (ebook)
Dispute resolution (Law).
Therapeutic jurisprudence.
Restorative justice.
King, Michael (Michael Sandford), author.
Freiberg, Arie, author.
Batagol, Becky, author.
Hyams, Ross, author.
347.09
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Foreword to the second edition
The Hon Chief Justice Wayne Martin AC
I am honoured to have been invited to write the foreword to the second edition of
Non-Adversarial Justice. The fact that the second edition is to be published five years
after the first is testament both to the rate of change and development in this important
field, and to the commitment of the authors to ensure that it remains up to date.
As the authors point out, the rapidity of change in this area of the justice system
has tended to outstrip the development of language capable of accurately describing
it. Terms such as “restorative justice”, “therapeutic jurisprudence”, “problem-oriented
courts” and “solution-focused judging” have waxed and waned. The title of this work,
Non-Adversarial Justice, conveys a concept which does not admit of ready or precise
definition. Its boundaries, and the concepts it embraces, are evolving. I can do no better
than use the authors’ description:
Its basic premises are prevention rather than post-conflict solutions, co-operation
rather than conflict, and problem solving rather than solely dispute resolution.
Truth-finding is the aim, rather than dispute determination, and there is a multi-
disciplinary rather than a predominantly legal approach.
One of the authors, Michael King, acknowledges the tendency to deride courts embrac-
ing these concepts as being “new age”, “flakey” or “touchy-feely”. At times in this book,
lawyers are referred to as “healers” or “spiritual guides”. Some of the discourse in this
book engages language more familiar to sociologists than to lawyers. However, none of
these things provides any basis for diminishing or underestimating the significance of
the developing field of non-adversarial justice or this collection of work.
To the contrary, this book demonstrates that there is nothing “kumbaya” about
developments in this field. Non-adversarial programmes have been adopted in Australia
by reference to careful analysis of international experience incorporating established
mainstream learning from relevant fields of behavioural science. The numerous reviews,
reports, audits and evaluations referred to throughout this work demonstrate that
developments in this area have been driven by research, reason and logic, rather than
by naïve optimism or esoteric fancy.
Nor can the authors of this book be dismissed as fervent missionaries eager to
convert others to their faith. On the contrary, in this work they take up the difficult
challenge of identifying the underlying theoretical constructs which support the various
initiatives described in this book, drawing upon hard-nosed and clinical assessments of
the weaknesses of those initiatives, as well as their strengths. Cracks in the fabric of the
many programmes and initiatives reviewed in this book are drawn to attention, rather
than papered over. Evaluations and outcomes are not viewed through rose-coloured
spectacles, or the prism of altruism, but in the cold light of political reality.
The development of new occupational practices of the kind described in this
book are referred to as undergoing a four-stage process – optimistic embracing;
hostility; institutionalisation entailing a more measured understanding of benefits
and pitfalls and finally, a strong interdependence between the developed initiative and
v
FOREWORD TO THE SECOND EDITION
other services demonstrated by the cross-fertilisation of practices and philosophies. The
material presented in this book provides readers with the opportunity to form their
own view as to the stage which non-adversarial practices have reached in Australia. I
think there is much to be said for the proposition that we have reached the third stage,
and that progression into the fourth phase will be significantly assisted by this work.
It enables lawyers and non-lawyers alike to gain a clearer understanding of the way in
which these programmes and initiatives can be integrated into the myriad systems for
the provision of social and other support in contemporary Australia.
This book reports evidence showing the significant successes of non-adversarial
justice. In that context readers are reminded that non-adversarial courts are not all of
recent origin, pointing to the coronial inquiry as a non-adversarial process venerated
by history, and which has stood the test of time. The authors point to the high levels of
victim satisfaction recorded in restorative justice systems, to the widespread acceptance
of alternative dispute resolution within Australia’s courts, the recent endorsement of
case management by the High Court of Australia, and the positive findings recently
made by the Law Reform Commission of Western Australia with respect to the family
violence court intervention programme model. The authors also discuss the benefits
to be derived by law students, lawyers, court staff and judicial officers by engaging with
non-adversarial methodology, as compared to more traditional legal methods.
However, as the authors point out, these recorded successes provide no basis for
complacency or an assumption that these programmes and initiatives will be supported
and maintained indefinitely. In some instances, as the authors candidly report, political
considerations have resulted in the closure of programmes in some jurisdictions, and
currently imperil them in others.
In this context, the authors identify two recurrent deficiencies which have
bedevilled initiatives and programmes in this field. First, programmes have often been
launched by reference to objectives which are more aspirational than realistic. Second,
evaluation of these programmes and initiatives has proven to be methodologically
complex and fraught with misinterpretation. In particular, in the criminal justice
area undue emphasis upon evaluation of rates of recidivism has tended to distort the
underlying objectives of these programmes and initiatives, which are much broader
than reducing recidivism.
This work provides an invaluable overview of the development of the wide
variety of programmes and initiatives within the general field of non-adversarial justice
over the past 30 years. Although reports on specific programmes and initiatives can be
found elsewhere, the great value of this work lies in the overview which it provides of
developments across a broad spectrum of fields, enabling the reader to identify both
differences and similarities in those developments. The breadth of this field makes it
impossible for any single volume to provide minute detail of each and every initiative
in this field, but the authors have been careful to identify the sources from which those
details can be found by readers with an interest in any particular development.
I have no hesitation in recommending Non-Adversarial Justice to anyone with
an interest in this field, and also to anyone who is interested in better understanding
principles and developments which are likely to be a significant force in shaping the
justice system of the future.
Wayne Martin
Chief Justice’s Chambers
Supreme Court of Western Australia
vi
Contents
Foreword to the second edition by The Hon Chief Justice Wayne Martin AC v
Preface to the second edition ix
1 Introduction 1
2 Therapeutic jurisprudence 20
3 Restorative justice 41
4 Preventive law 72
5 Creative problem solving 81
6 Holistic approaches to law 87
7 ADR: Appropriate or Alternative Dispute Resolution 95
8 Non-adversarial processes in family law 136
9 Problem-oriented or solution-focused courts 155
10 Diversion schemes and intervention programs 194
11 Indigenous sentencing courts 207
12 Managerial and administrative justice 216
13 Coroners 230
14 Implications for courts 238
15 Non-adversarialism and the legal profession 262
16 Non-adversarialism and legal education 274
References 289
Index 325
vii

Preface to the second edition
The pleasing response to the first edition of this book and the continuing evolution
of the concept of non-adversarial justice and the theoretical developments occurring
in many of the constituent fields of therapeutic jurisprudence, restorative justice and
alternative or appropriate dispute resolution (ADR) have encouraged us to continue
our collaboration in this still-nascent field.
When we embarked on this project our task was to outline what we discerned
was a growing trend in Australia and elsewhere towards the use of what we termed
“non-adversarial justice”. The concept was vague and continues to be so, though it
has proved to be a useful shorthand to capture the array of theories, practices and
approaches to justice that are changing the face of the law. On reflection, we consider
that the term may have been too negative, defining it by its antithesis rather than finding
a term that captures both its positive aspects and its applicability to legal systems other
than the adversarial. Until a better term is suggested, or a post-adversarial justice system
emerges, and pending further developments, we have decided to adhere to the original
title of the work.
Over the past half-decade much has happened in this field. Sadly, and notably,
one of the founders and pioneers of therapeutic jurisprudence, Bruce Winick, died in
2011. His legacy can be found in the ideas that infuse this book generally, and in the
exposition of therapeutic jurisprudence in particular in Chapter 2.
Therapeutic jurisprudence has expanded into new areas of the law and legal
and judicial practice. Mainstreaming therapeutic practices has become one of the
primary areas of interest for therapeutic jurisprudence since the first edition of this
book. Restorative justice proponents and critics alike continue to grapple with difficult
and often emotional issues surrounding the possible use of restorative justice in sexual
assault and family violence cases. Debates continue as to the efficacy of restorative
justice practices in promoting offender rehabilitation. Another development has been
the winding up of the International Alliance of Holistic Lawyers, but the influence of
the concept of a holistic approach to legal practice remains. The process of coronial
reform has continued, including making coronial processes accessible via the internet.
The institutionalisation of ADR has continued in Australia, in areas such as
family law, commercial arbitration and small claims disputes as well as for federal
civil disputes. However, there are signs of a growing anxiety about the presence of
ADR in the civil justice system, evidenced by the repeal of pre-action legislation
in both Victoria and New South Wales in 2011 and 2013 and the abolition, also in
2013, of the 18-year-old National Alternative Dispute Resolution Advisory Council,
the independent body established to advise the federal Attorney-General on policy
issues relating to ADR. These changes illustrate how the place of ADR and other non-
adversarial processes in the justice system is contingent on the support and patronage
of government. Real resistance to non-adversarial practices remains and can make even
established non-adversarial processes the subject of political contention.
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PREFACE TO THE SECOND EDITION
In the family law field, recent evaluations of the 2006 reforms, which centralised
non-adversarial practices, have provided a clearer picture about the operation of the
Australian family law system. Across both the courts and the family services sector,
more attention needs to be paid to representing children’s voices adequately in family
matters; providing support to vulnerable family members, including those affected by
family violence, Aboriginal and Torres Strait Islanders and families from culturally and
linguistically diverse backgrounds; making sure that families do not fall in the gaps
between federal and State family jurisdictions, especially those families experiencing
family violence and/or child abuse; and finding the right balance between legal and
non-legal service provision after separation.
The use of non-adversarial processes in courtrooms has developed. There has been
a significant advance in the understanding as to whether solution-focused court judging,
judicial case management and the use of judicial officers as mediators is constitutionally
permissible in Australia. Courthouse design continues to evolve so as to meet overarching
justice principles while being sensitive to the needs and wellbeing of court users.
Legal education has also undergone recent change. The “threshold learning
outcomes” created by the Australian Learning and Teaching Council focus, in part, on
developing practical skills in law graduates, thus encouraging a more diverse skill set
among graduates and making them more “practice ready” for a multidisciplinary and
collaborative environment. Similarly, professional development for lawyers and the
judiciary has expanded to include a variety of topics – such as therapeutic jurisprudence,
Indigenous issues, managing courtroom tension, equality and diversity – hitherto seen
as irrelevant to legal practice and the justice system.
Progress in any field is never linear and this is evident in the manner in which
non-adversarial practices have evolved in relation to problem-oriented courts in
Australia. Since the publication of the first edition, Michael King has, in a number of
publications, moved the concept of “problem-oriented” courts to “solution-focused”
courts, emphasising the active role of the defendant as a participant in, rather than an
object of, the justice process. The term is gaining wide acceptance. The courts them-
selves have changed as they have gained experience in this different form of justice.
Most courts and diversion schemes have undergone some form of evaluation and these
have added a deal of empirical support for the various theories and practices. A clearer
picture is emerging of what works, what does not, and why.
Because non-adversarialism is new and contentious it is also politically sensi-
tive. Governments that regard this form of justice as being “soft” on crime, ineffective,
“heavy-handed” and expensive have abolished courts, schemes and programs, while
others recognise their value and have introduced procedural reforms, increased the
number of courts and expanded their jurisdiction to cover new areas of harms or prob-
lems. Diversion schemes, for example, are constantly changing their scope, coverage
and often their names. Pre-action procedures have been introduced and then repealed
over the past five years.
This edition remains the product of a close collaboration between academic
and practising lawyers. Michael King has returned to legal practice as a magistrate in
Western Australia, where he attempts to combine theory and practice and continue
making a contribution to the non-adversarial literature. Ross Hyams has made, and
continues to make a major contribution to the development and operation of the
multidisciplinary clinic at the Faculty of Law, Monash University, which attempts to
put the theories developed in this book into practice. Becky Batagol and Ross Hyams
x