By Dr Liz Richardson, Senior Research Fellow, ACJI
Academics, lawyers, practitioners, and judicial officers have come together to discuss the theory and practice of the diverse areas of non-adversarial justice at two notable non-adversarial justice events in the first half of 2017 in Auckland and Sydney.
Non-adversarial justice has been described by King et al (2014, 5) in the following way:
Non-adversarial justice is an approach to justice, both civil and criminal, that focuses on non-court dispute resolution, including the role of tribunals and public and private ombudsman (Buck, 2005). However, it also includes processes used by courts that may not involve judicial determination, or court processes that involve judicial officers both pre- and post- determination of guilt or sentence in exercising more control over process (Cannon, 2006). Its basic premises are prevention rather than post-conflict solutions, cooperation rather than conflict, and problem-solving rather than solely dispute resolution. Truth-finding is the aim, rather than dispute determination, and there is a multidisciplinary rather than a predominantly legal approach.
The field covers a wide range of legal theory, inquiry and practice including therapeutic jurisprudence, restorative justice, appropriate or alternative dispute resolution, collaborative practice, problem-oriented or solution-focussed courts, preventive law, conflict resolution, procedural justice, community justice, managerial justice, among others.
NAJ symposium – Auckland 10 – 14 March 2017
A Research Symposium was held on 10-14 March 2017 to mark the opening of the new Centre for Non-Adversarial Justice at Auckland University of Technology in New Zealand. Professor Warren Brookbanks, Director of the Centre, opened the Symposium with an address reflecting on the concept of non-adversarial justice. He suggested that non-adversarialism and adversarialism are constitutive of the whole concept of justice, that is, they are two sides of the same coin. Other speakers such as Auckland Coroner Morag McDowell considered how the coronial process, in particular the post-mortem examination, might be reformed or improved through a TJ lens. Suggestions included more family support services such as dedicated bereavement support which currently does not exist in New Zealand, less formal hearings, and greater use of CT scans to reduce the need for post-mortem examinations and addressing delays due to waiting for evidence, workload, complexity of cases. Professor Kate Diesfeld spoke about her coming to TJ noted that critical perspectives were slow to rise in the mental health law field and reflected on her research with Brian McKenna on mental health tribunals using a therapeutic jurisprudence lens.
Professor Ian Freckelton QC gave a guest lecture and formally launched the Centre on Friday 10 March. The lecture entitled ‘Learning from the Pitfalls of Adversarialism’ used two dramatically different stories based on two cases, which highlighted the fraught nature of pursuing justice through the adversarial legal system. The first story and dispute was that between Sir William Dobell and Joshua Smith, the one-time friends, both painters, who entered paintings for the Archibald Prize in 1943. Dobell’s winning entry was a portrait of Smith, but one that was not at all flattering to Smith and had a caricature quality to it). Dobell came first and Smith second and the friendship was terminated immediately due to the offence Smith took at the painting. Two other competitors launched a legal challenge to Dobell’s win on the basis that it was a caricature not a ‘portrait’ as required by the rules of the Archibald Prize (Attorney-General v Trustees of National Art Gallery of NSW (1945) 62 WN (NSW)). Roper J found in favour of Dobell. The litigation was toxic and caused life long damage to both men. Professor Freckelton considered how the case could have been dealt with differently using non-adversarial process. Interestingly, Dobell’s work is the subject of an exhibition at TarraWarra Museum of Art in the Yarra Valley, Victoria currently.
Professor Freckelton then discussed the case of Oshin Kiszko, a 6 year old Perth boy diagnosed with brain cancer, but whose parents wanted to treat him with herbal therapies. Parents employed a publicist from the outset. It was a case of parental rights versus institutionalised medicine. The matter was dealt with by the hospital ethics committee first and then taken to the Supreme Court of Western Australia where the parents fought against chemotherapy and radiotherapy treatments for their son. They were finally granted their wish by the Court, and ultimately Oshin died from the cancer in the family home. Professor Freckelton suggested that both cases provide questions about what we want from our legal system and the role the law can play in most effectively resolving disputes. The questions posed by Professor Freckelton were how can we reduce the number of losers from conflict with a legal dimension? What techniques can we harness to facilitate rapprochement and for parties to articulate what matters most to them? How can we make recourse to law quicker more accessible, less intimidating, fairer, and less counter-therapeutic? He argued that this the space in which non-adversarial justice resides.
On Monday 13 March, Judge Lisa Tremewan reflected on her experiences as presiding judge of the Alcohol and Drug Treatment Court of New Zealand and the importance of adhering to best practice in administering drug courts. Later in the Symposium Judge Phil Recordon in contrast discussed his experiences applying therapeutic jurisprudence in the mainstream courts of the District Court of New Zealand through the judicial monitoring of offenders, reflecting also on specialist jurisdictions of family violence courts and Rangatahi Courts for Maori youth offenders and Pasifika Courts for youth offenders from the Pacific Islands in New Zealand.
Offenders with mental illness in the criminal justice system was a theme of papers throughout the symposium with Professor Brian McKenna from the Department of Nursing at AUT speaking on police diversion of offenders with mental illness. Dr Liz Richardson from the Australian Centre for Justice Innovation gave a keynote address entitled Mental Health Courts: Proposing a Model for New Zealand where she discussed the over-representation problem of offenders with mental illness in the criminal justice system and outlined the mental health court model as one response to this problem. She discussed the evidence supporting these courts, as well as ‘what does not work?’ in mental health courts using the net-widening framework as a lens to analyse court policies and practices. Dr Richardson drew on this analysis to outline a vision for mental health courts in New Zealand.
Second International Conference on Non-Adversarial Justice (NAJ2017)
In Sydney on the 6-8 April 2017, 180 delegates from Australia and overseas came together for the Second International Conference on Non-Adversarial Justice (NAJ2017) hosted by the Australasian Institute of Judicial Administration. The first such conference was held in conjunction with the Monash Law Faculty in Melbourne in 2010 with great success. The aims of NAJ2017 were to promote discussion and consolidate knowledge about non-adversarial justice practices operating in justice systems today; to promote dialogue between courts and tribunals and the social sciences in relation to non-adversarial justice practices and to consider the theoretical and practical challenges facing courts in utilising non-adversarial justice practices and programs.
Over three days, delegates heard keynote addresses on the theory of non-adversarial justice from Professor Warren Brookbanks, Auckland University of Technology; the practice of non-adversarial justice from Chief Justice Wayne Martin of the Supreme Court of Western Australia; judging and therapeutic jurisprudence from Professor David Wexler, University of Puerto Rico; Dr Karni Perlman spoke on challenges facing courts in applying non-adversarial and therapeutic justice in court systems, and Emeritus Professor Arie Freiberg, Monash University addressed delegates about the recent review to re-establish Drug Courts and other problem-oriented courts in Queensland. On the final day of the conference keynote speaker Jon Everest of EI Ltd – Growing Out of Conflicts addressed delegates on restorative justice in family violence cases in New Zealand, Emeritus Professor Michael Perlin from New York School of Law spoke on the differences between mental health courts and involuntary civil commitment courts in the United States and Professor Tania Sourdin, from the University of Newcastle Law School (formerly the Director of ACJI) spoke about promoting more therapeutic forms of alternative dispute resolution.
Highlights of the concurrent sessions at NAJ2017 were an interactive workshop with Judge Peggy Fulton Hora from the Superior Court of California (retired) on the ethical divide in problem-solving courts, drawing on examples of real life ethical situations. Dr Anthony Hopkins from the Australian National University spoke about the importance of compassion as a foundation for solution-focussed sentencing, and provided an excellent example of a presentation that clearly drew the connection between theory and practice. There were several important presentations on the use of non-adversarial justice in family violence cases from eminent academics, judicial officers and practitioners including Dr Becky Batagol, Deputy Director of ACJI, Professor Rachael Field from Bond University, the Honourable Judge Eugene Hyman (Ret.) Superior Court of California, County of Santa Clara, Magistrate Kate Hawkins, Lisa Eldridge and Rob Challis from the Magistrates’ Court of Victoria, on mediation and specialist family violence courts, each with a focus on using evidence-based best practice.
Numerous practitioners and judicial officers from mental health courts around Australia and academics researching these courts (including Dr Liz Richardson from ACJI) presented on the latest research and practice in different courts. The conference also represented a great opportunity for practitioners and judicial officers working in Australian and New Zealand drug courts to come together. Representatives from the State Courts of Singapore spoke about non-adversarial approaches currently being used in Singapore such as criminal mediation. Several excellent presentations explored and explained the dimensions and applications of restorative justice in new domains including sexual violence and family violence cases. In other sessions, judicial officers drilled down into the nitty-gritty of applying therapeutic jurisprudence in mainstream and problem-oriented courts.
Two concurrent streams were held on community justice with several outstanding presentations from practitioners, court staff and the presiding magistrate, David Fanning from the Neighbourhood Justice Centre. Delegates also learned of the work being done in Western Australia to establish a community court from Associate Professor Sarah Murray from the University of Western Australia. The conference included many other notable presentations on ADR, mediation, ethics, vulnerable groups, lawyering, judicial monitoring, procedural justice, family law, diversion, sustainable justice, dispute resolution in tax matters, interdisciplinary collaboration, the work of frontline court staff and indigenous justice. The conference provided an important opportunity for members of the judiciary, academics, court practitioners, lawyers and health professionals to come together to discuss the latest research and practice aimed at improving the justice system and responses for victims, offenders and other users of the legal system.