Abstracts A-L
Jenny Bargen
Senior Consultant, CHD Partners
Jasmine Bruce
Social Policy Research Centre, UNSW
Engaging police in restorative processes
Even though restorative justice processes aim to empower the participation of communities, victims and offenders in dialogue and decision making, criminal justice professionals such as police have an important role to play. This paper focuses on the factors that facilitate as well as hinder the effective participation of police in restorative processes such as conferencing. It is based on insights and reflections made by researchers about the involvement of police participants in the operation of the Young Offenders Act NSW and in particular on their role in the scheme of Youth Justice Conferences established under the Act.
Lise Barry
Macquarie Law School
Macquarie University
A View From the Chair
Restorative Justice can offer an important opportunity for young offenders to be heard, but this requires the ability to articulate something about the offending behaviour and the offender’s circumstances, a sometimes difficult task for young people. The role of the conference convenor can be a crucial one in preparing the young person to participate in the process and in allowing them the space and time to articulate their feelings in words and actions during the conference. In this paper the author draws on her own personal experiences of conferencing for young offenders to talk about what works and what doesn’t in facilitating the participation of young people in restorative justice processes.
The author draw on her experience as a youth justice conference convenor as well as community mediator to discuss how her own style of facilitating restorative justice processes has evolved. In particular, the author will discuss how her experiences have led her to an understanding of the importance of cultural competence in convening, the role of silence and the importance of ritual in the restorative justice process. The aim of this paper is to focus on the detail of the conferencing process to articulate how some of the theories about restorative processes can be put into practice.
Howard Bell
NSW Branch Committee, Amnesty International Convenor, Central Coast Group Amnesty International A/Chair, Inner Sydney Catholic Social Justice Group; Legal Practitioner
Justice, Peace and Human Rights Compliance: perceptions, illusions and realities – towards a universal template for social justice
Traditionally the rule of law has included a principle that justice must not only be done it must be manifestly seen to be done. Today we are getting better at being able to empower people and organisations to achieve their own hand-crafted solutions to disputes and conflicts through mediation, conciliation and dialogue. We are also improving our capacity to achieve this between states and nations.
What do we actually perceive when we see justice done? How do we know a truly just outcome when we see one? Does justice exist in a holistic sense when homelessness, bullying, denial of dignity to refugees, domestic and other violence and state-sanctioned murder are still normal daily events around the globe in 2009?
With information overload characterising life in our living rooms, our workplaces, our refuges and our places of learning and recreation, where do we nurture the core values which can facilitate justice with peaceful solutions? How do we assess how far we have actually come and how far we are yet to go if we are to ever achieve a condition of civilisation?
Is justice an absolute phenomenon? Or is the best we can get to be found in convenient labels that fit the products of policy making, legislating or the decisions of courts, tribunals and the agencies of executive government?
One way of formulating a workable best practice model for restorative social justice is to identify some common qualities necessarily present in communication processes operating between individuals, organisations and nations who seek to manage the impressions others form about them.
This paper proposes a number of elements that might typically be found in effective systems of communication to promote sustained and enduring justice and peace. Such common elements should better illuminate the pathway towards the attainment of conditions of a peace with justice model and a world in which human rights compliance becomes a real signpost along our journey towards civilisation.
Tanya Bernard
General Linguistics, Stellenbosch University
Telling the truth: self-incrimination vs self-justification
This paper will report on recent research into the content and structure of two perpetrator testimonies at the South African the Truth and Reconciliation Commission (TRC) that took place between 1996 and 1998, investigating human rights violations (HRV’s) that occurred during the period between 1960 and 1994.
In particular, the study analyses the testimonies of former South African Police (SAP) officers, one of high and one of considerably lower rank, during the TRC hearings. The paper draws on a theoretical framework suggested by Reisigl and Wodak (2001) and later by Benke and Wodak (2003) on discursive justification of violent and discriminatory acts (human rights violations or war crimes). Benke and Wodak’s (2003) study analysed recorded interviews with ex-Wehrmacht officers, considering their responses to an exhibition as a particular type of justificatory text. They considered the prevalence of various of justificatory strategies, and found that a particular discourse characterised as “justificatory”, may contain other elements – thus making it a hybrid narrative in which the speakers simultaneously attempt to achieve different kinds of objectives.
The testimonies of the perpetrators who testified at the TRC offer a particular version of, or perspective on, an event to which they are linked as officials who directly or indirectly sanctioned and committed human rights abuses. Their testimonies, brought with a view to gaining amnesty, are found to be argumentative and persuasive rather than explanatory. The narratives [1] are apparently structured to convince the listener of the acceptability or “truthfulness” of their claims rather than secure the listener’s understanding of the circumstances. Furthermore, the testimonies appear to be attempts at justifying their own role in a particular event. Curiously, even if psychologically real, there is more evidence of their own internal conflict than of contrition and a sincere wish to apologise or make amends.
The paper will use the framework provided by Reisigl and Wodak (2001) and by Benke and Wodak (2003) to give a critical linguistic analysis of the particular narratives. The aim is eventually to consider (i) what constitutes “truth” and “full disclosure” that is required in an amnesty hearing, (ii) whether testimonies such as those heard by the Amnesty Committee of the TRC are enough for reconciliation, and (iii) what kind of reparation such testimonies offer.
[1] The concept of ‘narrative’ is arguably a more appropriate term for the discourse of the victims; it is used here to describe stories or accounts that argue and justify a particular perspective. Therefore, ‘narrative’ is conceptualised in a more narrow sense to, for example, Narrative Theory or SFL’s use of the term (see Labov 2002).
Natalia Blecher
Freehills Melbourne
Family Group Conferencing Ideals and Practice: the lens of apology
Family group conferencing (FGC) has gained significant traction in criminal justice systems both domestically and abroad. As a restorative justice practice, family group conferencing aims to facilitate an exchange of narratives between the victim, offender, and offender’s ‘community of care’ in a bid to mend the social bonds frayed by the offence. This repair is sought to be achieved via ‘reintegrative shaming’ – a threat of social exclusion accompanied by an invitation to rejoin the community of moral citizens. An offender who has been successfully shamed is expected to finally comprehend the impact of the offence and – it is hoped – is in a position to tender a thoughtful, sincere and categorical apology. Apology being a kind of prelude to forgiveness, it carries enormous restorative and therapeutic potential and is, for this reason, seen as the touchstone of family group conferencing.
The empirical literature on family group conferencing is glowingly complimentary in many respects. However, on scales that restorative justice (RJ) was designed to maximise – such as facilitating sincere apology and forgiveness – the data are far less flattering. There is indeed a concerning disparity between FGC ideals and practice. I explore the reasons for this disparity utilising the lens of apology.
Much of the literature surrounding apology is oriented to political discourse or high level philosophy and is thus of limited utility to any practical evaluation. As a first measure, I offer a definition of apology more suited to the contours of juvenile criminal justice. Then, through grafting this definition of apology onto what we already know about FGC processes, it emerges that there are indeed a whole host of heretofore obscured reasons as to why any given conference may fail. Some of these reasons are procedural in nature, so might be remedied through alterations to conferencing practice. But other causes derive from inherent limitations on humans’ capacities to meaningfully apologise or authentically forgive. Such problems cannot feasibly be overcome but should be taken as delineating the boundary line of RJ.
Cathy Bracken
Juvenile Justice, NSW Department of Human Services
Themes and Language in Youth Justice Conferencing
This session will explore the background, implementation and administration of the Young Offenders Act 1997. The Act introduced a different way of justice for young people in NSW in 1998.
The Act established key themes and language around dealing with children who commit certain offences. These concepts include: taking responsibility for actions; reintegration rather than exclusion or separation; outcomes instead of punishment; restorative rather than punitive; admission rather than guilt; least restrictive sanctions; rights; entitlement and community based negotiated response to offending behaviour.
The Act recognises the importance of victims in the process, their entitlement to information and to be included in making decisions about how the child can repair the harm caused by the offence. It continues to identify the importance of families and the young person’s community to the reintegration process. The Act initiated collaborative decision making across key NSW justice agencies including: police, children’s courts and juvenile justice.
The presenter will draw on over 11 years experience with Juvenile Justice to explore the themes and the language within the Act; as well as the practical implications for administering a community based negotiated response within a formal justice framework.
Peter Condliffe
Specialist Mediator and Facilitator; Accredited Family Dispute Resoution Practitioner
Victorian Bar & LEADR, IAMA
Reflections on Conferencing Practice: The Need for Accreditation and the Dangerous Debate?
Recent developments in mediation accreditation raise the question whether similar accreditation initiatives are appropriate to the practice of restorative justice and in particular the practice of conferencing. In this I will explore some of the synergies between mediation and conferencing and consider whether accreditation is appropriate for conferencing. I will then look at the recent attempts by the Victorian Association for Restorative Justice (VARJ), of which the presenter is President, to introduce Best Practice Standards and an Accreditation Scheme for restorative justice practitioners.
James Dhizaala (PhD) candidate
PhD candidate
Centre for Peace and Conflict Studies (CPACS)
University of Sydney
Imagining Restorative Justice in Liberia: Notes on the Truth and Reconciliation Commission of Liberia
Abstract: In 2003 the warring parties signed the Accra Comprehensive Peace (ACP) agreement to end 14 years of violent civil war in Liberia. The ACP required the National Transitional Government of Liberia (NTGL) to institute a truth commission convinced that national peace and security, unity and reconciliation are indispensable to the attainment of national development goals and the truth commission was to contribute to this realisation. Henceforth, the Truth and Reconciliation Commission for Liberia was formed by Act of Parliament in 2005 with a mandate to: investigate gross human rights violations; provide a forum that will address issues of impunity; investigate the antecedents of the crises; and conduct a critical review of Liberia’s historical past. The TRC was formed in response to crimes committed during the civil conflict and with the goal of reintegration of both victim and offender as productive community members. In 2007 the truth commission was inaugurated, and in July 2009, after almost three years, concluded its work and the final report was handed over to the legislature and was made public. This paper explores the process of establishing the TRC and the debates and controversies that occurred during conception and implementation of the process. It will offer an assessment of the truth and reconciliation commission as a restorative justice mechanism based on field research conducted in Liberia in May-June 2009.
Shoshana Dreyfus, Daniel O’Sullivan & Dimitrios Papalexis
Dept of Linguistics
University of Sydney
The politics of ‘sorry’: from apology to reparation
From the 19th century to the late 1960s, the Australian government’s removal of Indigenous Australian children from their families in efforts to integrate them into non-Indigenous Australian culture led to generations of traumatized people who have become known as the ‘Stolen Generations’. The Bringing Them Home report (HREOC 1993), commissioned by the Labor government under Prime Minister Paul Keating, brought to the Australian public’s attention the brutality, ongoing trauma and damage that the policy of child removal caused. As a result of the report, calls were made for reparations, that included an official government apology to the Stolen Generations, an acknowledgement of governmental responsibility and some form of compensation to those affected. The government wrestled over the issues of restorative justice, legal responsibility and the ethical implications of the removal for years.
This paper uses the theoretical tools of Systemic Functional Linguistics to examine some of the official responses to this issue by the leaders of Australia in the time leading up to and including the Australian government’s official apology to Indigenous Australians in 2008, under the newly elected Prime Minister Kevin Rudd. An analysis was conducted on four texts from Australian Prime Ministers and one senator (on behalf of a Prime Minister). The findings of the analysis illustrate how the Prime Ministers use semiotic resources to construe very different versions of the issue, revealing different ethical and legal stances, and shedding light on where Australia is situated on the long road to reconciliation. This research aims to contribute to a discussion about the way that the national leaders chose to deal with one of the most challenging issues of Australian history through their speeches and thus to raise attention to the significance of the issue of reconciliation.
Glenn Duhigg
Coordinator, Restorative Justice Unit
NSW Department of Corrective Services
Post-sentence Restorative Justice Processes involving adult offenders
The Restorative Justice Unit (RJU) at the NSW Department of Corrective Services (DCS) has provided post-sentence restorative justice processes involving adult offenders since 1999. The restorative justice processes on offer include Victim Offender Conferences (VOC) and various forms of Indirect Mediation.
Initially it was thought that the RJU would be dealing with high volumes of cases involving less serious offence categories such as property offences. This has not been the case.
The majority of referrals involve offences including murder, manslaughter, armed robbery and dangerous driving occasioning death. In 10 years of operation we have facilitated well over 100 restorative justice processes following very serious offences.
Often the offenders are serving lengthy sentences of imprisonment and have high security classifications assigned. The reality of the incarceration of these serious offenders impacts directly on the locations and settings in which the restorative justice processes can be facilitated.
Our VOC take place regularly in maximum security correctional centres such as Lithgow, Goulburn and Long Bay. An offender housed in the High Risk Management Unit (the so-called SuperMax Prison) has participated in one of the most successful VOC we have facilitated.
In our presentation we reflect on the settings in which the VOC take place and the issues that need to be managed to successfully run the restorative justice processes in the correctional context.
We also pay particular attention to the facilitation techniques that we employ in our practice and consider why we use these techniques and what effect they have. We unpack the performance aspects of the facilitators’ role as both “scriptwriter” and “director”.
Many referrals to the RJU involve an offender responsible for taking a human life and a family dealing with the aftermath of the murder/manslaughter of a loved one. In this context we consider how acts of repair are negotiated in restorative justice processes facilitated by the RJU.
In our presentation we will discuss the outcomes realised from a sample of cases following acts of severe violence. These include acts of symbolic reparation, commitments to undertake accredited programs to address offending behaviour and moral agreements that seek to manage interactions post-release.
Our experience over the past 10 years indicates that restorative justice processes operating post-sentence offer a unique mechanism for healing and transforming conflict that can not be realised within traditional legal-judicial practice. We suggest that the settings for our restorative justice processes and the facilitation techniques employed allow for remarkable acts of repair to be negotiated following acts of severe violence.
Tony Foley
ANU College of Law
Doing Retribution Restoratively?
This paper considers the relationship between restorative and retributive justice and argues that the distinction made between the two is a false dichotomy. It asserts that much of what is required to respond to criminal wrongdoing can be delivered through a restorative conferencing approach.
There are three essential aims in responding to criminal wrongdoing. These can be categorised as the need to deliver retribution, to achieve restoration and to meet certain consequential outcomes. A proper understanding of what retribution, fro instance, requires is that the wrongdoer deserves to suffer certain things as a consequence of his or her wrong. S/he deserves to suffer the pain of censure and denunciation, the pain of remorse and the pain of sanction and punishment. Similarly, restoration requires the repair of both personal and normative harm caused by the wrongdoing and certain consequential outcomes must also be addressed such as the need to provide protection, prevention and deterrence.
However, much of what is required in each of these categories is achievable through a restorative conferencing encounter. This paper asserts that retribution can be met by means other than by punishment, restoration by more than simply normative repair and consequentialist aims by methods other than simply separation. In particular, it raises the controversial proposition that restorative processes provide the best alternative avenue through which to meet many retributive aims falling short of punishment. The proposition is illustrated by examples from restorative processes operating in New Zealand, Canada and Australia.
Anthony Hopkins
Faculty of Law, University of Canberra
Russell Boyd LLB (Hons)
NSW Attorney-General Department
Drawing the line between Acceptable and Unacceptable Cross-examination of Child Sexual Assault Complainants: the application of s 41 Evidence Act 1995 (Cth & NSW) — a question of perspective.
Cross-examination is central to the adversarial system of justice. Yet cross-examination is traumatic for those who are subjected to it. This trauma is particularly evident and well documented in relation to child sexual assault complainants, though it may be occasioned wherever there is a significant power imbalance between the questioner and the witness. Arguably, a certain level of trauma is unavoidable; a necessary incident of the testing of a witness’ evidence at trial. Accepting this, consideration of the limits of permitted cross-examination is critical to the broader agenda of therapeutic jurisprudence.
Courts and legislatures have sought to draw a line between acceptable and unacceptable questioning in cross-examination in an attempt to curb what are now termed ‘improper questions’. In NSW and at Commonwealth level, these efforts have resulted in the enactment of a reinvigorated s 41 Evidence Act 1995, which took effect on 1 January 2009, with a similarly worded provision found in the Evidence Act 2008 (Vic). The changes mandated judicial intervention to curb ‘improper questions’ and broadened the applicable definition. To date there has been no formal evaluation of the effectiveness of these legislative amendments.
This paper presents the findings of a series of interviews with experienced defence and prosecution barristers with respect to the impact of a provision upon which s 41 was modelled, s 275A Criminal Procedure Act 1986 (NSW). Although the study was of small scale, the principal finding was that s 275A made little if any difference to questions asked of child sexual assault complainants, giving cause for concern to legislatures and those who advocate for enhanced statutory controls on improper questions.
The findings indicate that drawing the line between acceptable and unacceptable cross-examination is not simply a matter of legislative definition or mandated powers of intervention, it is a question of perspective. The questions asked in cross-examination of a child witness may appear improper from the perspective of a child, or from the perspective of a person with specialised knowledge of child development and child behaviour. And yet, those same questions may be viewed as entirely proper from the perspective of legal participants, long trained in the adversarial process and cognisant of the centrality of cross-examination to the defendant’s right to a fair trial. Ultimately it is the latter perspective that counts in court.
The challenge then, for those concerned to limit the trauma experienced by child complainants through cross-examination in sexual assault cases, and vulnerable witnesses generally, is to reconcile the competing perspectives. Consideration needs to be given to the extent to which this is ultimately achievable and the conditions under which progress can be made. In determining this, close attention must be paid to the roles and responsibilities of defence counsel at trial. It will be suggested that the findings add weight to calls for specialist jurisdictions and processes designed to holistically support the child complainant through the inevitable experience of being robustly challenged.
Rick Iedema & Suellen Allen
Centre for Health Comunication, UTS
Open Disclosure – Initiating discussions with patients and families about unexpected outcomes in tertiary care
Open Disclosure involves clinicians discussing with patients and family members the details of unexpected clinical outcomes. This paper presents interview data gathered as part of the 2007 national evaluation of the Open Disclosure pilot project in Australia, and the more recent ‘Open Disclosure: the 100 patient stories project’. The data includes comments from patients and family members about their experiences of disclosure meetings with clinical staff. Analysis of the data demonstrates that while Open Disclosure has begun to make inroads into everyday practice, its enactment does not always meet the expectations of patients and family members. Disclosures tend to be conducted in ways that do not match the severity of the incident in the patient’s (family member’s) eyes; the clinicians originally involved in the incident do not make themselves readily available to provide explanations or to offer reparations; different clinical staff may at times offer conflicting explanations and advice, and staff generally fail to appreciate that patients and family members may seek, besides a full explanation, an apology and reparation, engagement with those providing the service to discuss opportunities for rectifying the wrong at levels other than personal ones, such as improving the service. The paper concludes that the initiation of Open Disclosure in Australia places clinicians and consumers in a delicate situation: a practice of restorative openness has been initiated while not all parties to this communicative practice appear skilled in enacting it in a way that ensures its effectiveness.
Shirley Jülich
Centre for Business Interdisciplinary Studies and the Program Leader at the Centre for Restorative Justice, AUT University, Auckland
Restorative Justice and Gendered Violence: Can it Deliver Substantive Equality?
This paper discusses the development of Project Restore, a restorative justice provider group in Auckland, New Zealand, that has emerged in response to the frustration of victim/survivors of sexual violence pursuing justice in the conventional criminal justice system. The founding members of Project Restore were inspired by the RESTORE programme in Arizona, developed by Professor Mary Koss, and the experience of Auckland Sexual Abuse Counsellors (ASAH) counsellors who have from time to time assisted victims to experience a sense of justice in other ways, such as civil cases and face-to-face facilitated meeting.
Project Restore is unique in that its formation has been driven by survivors of sexual violence, is situated across community agencies and is founded on research with survivors. Its services and practice models are the result of extensive collaboration between victim/survivor advocates, established community organisations such as Auckland Sexual Abuse HELP, SAFE Network, Rape Prevention Education (formerly Rape Crisis Auckland) Tiaki Tinana (the Maori programme within Rape Prevention Education), and other agencies working with victim/survivors and offenders. Members of Project Restore are working closely with restorative justice facilitators to provide safe processes that aim to provide victims with an experience of a sense of justice, support offenders to understand the impacts of their behaviour and facilitate the development of an action plan aiming to keep the offender safe in the future.
A key resource in the development of Project Restore is research in which survivors of child sexual abuse were consulted regarding their understandings of justice and how they could envisage experiencing a sense of justice. The processes they identified were similar to those of used in restorative justice. However, when it came to their own circumstances they seemed reluctant to consider it. An analysis of the interviews led to the conclusion that there were a number of practice issues that would have to be addressed before restorative justice could address either current or historical or sexual violence. Such issues included the definition of community, a negotiated community response, the transfer of power to the community and the challenge for restorative justice to provide substantive equality. They noted they had no reason to trust their various communities given that these same communities were unable to protect them as children. Also, they questioned how a neutral facilitator could ensure that structural inequality, evident within societal systems, would not be replicated in the restorative justice process. These practice issues have driven the development of practice. The paper concludes with a discussion of how Project Restore’s practice models address the issues raised by adult survivors.
Venezia Kingi
Crime and Justice Research Centre, Victoria University of Wellington
Judy Paulin
Evaluation and research consultant
The use of RJ in family violence cases the New Zealand experience
According to ancient Greek mythology, Zeus gave Pandora, the first woman, a box as a wedding gift but told her not to open it. She did, and ironically released all the evils of the world. Debates around the use of restorative justice (RJ) with family violence cases are akin to this myth with Busch (2002) asking the question ‘Who pays if we get it wrong?’
One of the most controversial topics in RJ is its potential for dealing with conflicts within families. Though there is increasing interest in and support for restorative justice worldwide, in no country has there been a major shift to address family violence through restorative ideas and practices. Most RJ programmes specifically exclude family violence as an appropriate offence to be dealt with this way. Braithwaite and Strang (2002), ask whether this reflects a lack of courage or a prudent recognition of the special risks in applying restorative justice to family violence.
However, advocates of RJ envisage such processes as having the potential to increase women’s choices, provide women with a voice, and draw on the support of family/wh?nau and friends in a way that may increase their safety See, for example, Morris & Gelsthorpe (2000). In contrast, opponents draw attention to the unequal power relationships between victims and perpetrators, and raise concerns that RJ processes may compromise women’s safety and expose them to further victimisation. See for example, Lewis et al. (2001), Busch (2002) and Stubbs (2002). In any event, firm research evidence on the effectiveness of RJ processes in family violence cases is scant, and such pointers as exist are somewhat contested
This presentation contributes to the ongoing debate by presenting the findings of some New Zealand research which sought the views of victims and offenders who had taken part in such processes.