Abstracts M-Z
Richard Mohr
Faculty of Law, University of Wollongong
Francesco Contini
Judicial Systems Research Institute (IRSIG – CNR), Bologna
Restorative Justice and Information Technology: A common challenge to the judicial paradigm?
In response to the call for papers’ invitation to consider ‘the challenges, promises and processes of a new paradigm’, we would like to inquire into nature and extent of that paradigm. We suggest a possible relationship between the paradigm of restorative justice (RJ) and other paradigm shifts that may be identified in the delivery of court services.
The question of competing paradigms is salient for RJ, given the debates over its relationship to the traditional criminal justice system: is RJ compatible with or exclusive of criminal justice? Or is it simply defined as anything that is not criminal justice? By examining other paradigm shifts, we hope to find new terms in which to understand these relationships.
Taking an unlikely liaison, we will suggest that there are common elements with the introduction of information and communication technology (ICT) into courts and justice systems. Drawing on work done by one of the authors (Contini) in this latter area, we will outline certain common characteristics in the introduction of ICT and restorative justice into courts. Both involve new players in the justice system, both operate according to logics or systems that diverge from the traditional legal model, and both appear to take new approaches to decision-making and judicial proceedings.
To the extent that these new approaches have been embedded in existing justice systems, each has influenced the traditional operations of the courts. At the procedural level, we will point out that both ICT and RJ approaches tend to short circuit the traditional finding of guilt or liability. In other areas, both appear to compete with or to usurp certain basic functions of courts, by taking account of factors regarded as irrelevant to or subversive of the traditional legal procedures: emotions and efficiency to mention just two.
While our conclusions are very tentative at this stage, we hope to propose both evaluative and a technical directions for future consideration. Ultimately, the emphasis of both ICT and RJ on outcomes over decisions, notably determinations of guilt or liability, may be found to be a threat to certain important values that should be preserved within the justice system. We discern certain incentives to admit liability or guilt embedded within the very structures of ICT and RJ. Simplified online or bill-paying procedures or user-friendly community processes may be both attractive to participants (in order to avoid the formal processes of the courts) and may mask the legal implications of opting for a less formal process.
From a technical point of view, we will suggest that both ICT and RJ have the potential to introduce new logics and practices into courts. Drawing on the concept of assemblages and on new materialist approaches to institutional practice that have been better developed in ICT than in RJ, we will inquire how these apparently diverse and oppositional approaches to justice may infiltrate and change the traditional systems in unanticipated ways.
David Moore
PRIMED
Primed (dramatising “how things are”) (Tuesday session)
When organisations need to change, senior managers frequently ask in frustration why people resist. This is probably the wrong question. People are not necessarily resisting change as such. They are resisting taking high risks for no apparent gain. They are resisting losing control and feeling pushed into the unknown. Under the right circumstances, people will embrace change. If they can visualise a better future and believe in the changes needed to get them there, change can be exciting and rewarding.
It’s now well understood that many traditional, step-by-step approaches to organisational change have not been particularly successful. People tend not to be motivated by numbers or business cases alone. A purely rational approach to change is not enough. And coercion is demotivating. People need to be asked rather than told, and be positively emotionally engaged. They need a sense that the destination is a desirable place to be, and need to see and feel the case for change.
Sydney-based change consultancy Primed has recorded some striking successes in achieving this alignment towards a common goal of change. At the core of Primed’s work is a method called “realplay.” In workshops with groups of organisational staff, experienced professional actors re-enact typical scenes from the life of the organisation. The actors follow deeply researched scripts written especially for the organisation. The audience – all of whom are organisational staff – then question the actors (who remain in role). In effect, participants are asking questions of themselves and their colleagues. This exercise, where staff first observe then question “themselves”, allows staff to identify and analyse key issues, while being profoundly emotionally engaged. This is a paradoxical state of “detached engagement.” Workplace scenes that ring true help connect people’s thoughts and feelings. The scenes create a “safety net” so that staff can identify actionable solutions that they might previously not have been prepared to suggest, or that might not even have even crossed their minds.
From ‘restorative practices’ to ‘relationship management’: a schools-based project of the Australian Government Quality Teaching Program (Wednesday session)
The movement for restorative justice or restorative practices in schools began with a focus on:’
- “responding to bad things that have happened” and
- “preventing bad things from happening”
Peer mediation and, more dramatically, Community Conferencing offered effective responses to harm in school communities.
However, this movement is now at an very interesting point of transition.
In schools, and other organisations (indeed communities) more generally, conversations occur:
- with oneself (prompted by observational coaching),
- between individuals,
- between individuals with the assistance of a third party, and
- within a group, with the assistance of a third party.
This communication is either primarily:
- Reactive – i.e. reacting to something bad;
- Preventative – i.e. seeking to prevent something bad;
- Proactive – i.e. promoting something good.
Combining these distinctions produces a set of process options. (For example, Conferencing is a process for facilitating a group discussion in reaction to some social harm; Circle time is a process for facilitating a group discussion to prevent some harm, or to promote some social good.) Some of the most sophisticated programs for restorative approaches in schools have began to emphasise relationship management, using largely descriptive terminology to describe the various processes that help constructive communication. These program have emphasised feedback, negotiation for constructive negotiation and “circle time”. As a result, less time is needed for the more reactive processes (although these remain very useful). These schools are consistently reporting profound change, producing more supportive culture and higher level of engagement and motivation (including improved academic results). Moves are now underway with a network of Victorian universities to evaluate this work with adequate longitudinal studies.
Amrita Mukhopadhyay
Faculty of Business and Economics
University of Sydney
‘Repositioning’ Restorative Justice in India
Victim restoration and community restoration are two cornerstones of restorative justice. The restorative justice process actively allows victims of crime to participate in the process of restoration thereby creating a better community for all. Domestic violence is one such area where restorative practices have been successfully applied. However the current literature on restorative justice is primarily rooted in western experience and practices. It focuses on the experience of countries like Australia, New Zealand, United States of America and Canada. This paper will attempt to re-examine restorative justice in light of the issue of domestic violence in India.
The study of restorative justice and domestic violence assumes significance when applied to the Indian context. Restorative practices dealing with victim restoration in India has hardly been the object of study. K Chockalingam has revealed that crime victim services in India are lacking in several respects and “…although India has engaged in various reforms in criminal investigations and prosecution, the sufferings of crime victims have been largely neglected”. This scenario is compounded further if we consider women crime victims and the issue of domestic violence. Women as victims of domestic violence are further disadvantaged due to their low socio-economic standing within a family. The enactment of the Protection of Women from Domestic Violence (PWDV) Act has, for the first time, allowed for immediate victim restoration and created the space for the emergence of restorative practices.
Drawing on primary and secondary literature, the aim of the paper is to ‘reposition’ restorative justice in India. The paper will be set in five parts – the first section will give a brief overview of restorative justice in the West. The second section will discuss the remedies available to victims of domestic violence prior to the enactment of the PWDV Act and discuss the circumstances leading to the enactment of PWDV. The third section will discuss the main provisions of the act and the method of implementation. Through an analysis of provisions, the paper will also seek to answer if the Act lays the foundation for the emergence of restorative justice practices in India. Fourthly, the paper will canvass some of the restorative practices emerging out of policy implementation. Finally the article will draw conclusions about ‘repositioning’ restorative justice in India and seek to uncover some of the issues of restorative justice and family violence within the Indian context.
Ikuko Nakane
Asia Institute, University of Melbourne
The Conditions and Consequences of the Non-use of Interpreter in Japanese Criminal Courts
This paper reports preliminary findings of a study which examined interaction involving non-Japanese speaking background people (NJSBs) in Japanese criminal courts. In the last two decades, Japan has seen a large increase of overseas visitors as well as increases in alien (This is the official translation of gaikokujin, literally ‘foreigner’, by the Ministry of Foreign Affairs of Japan) registration. In 2004 the number of cases requiring an interpreter was 3.5 times higher than 1991 and in 2007, one in fourteen defendants in Japanese criminal courts required an interpreter. In consequence, issues in court interpreting have drawn increasing attention in recent years (e.g. Tsuda 1997, Mizuno 2006, Nagao 2006). Additionally, with the recent introduction of the saiban-in (lay judge) system, a form of jury system in major felony cases, there is an urgent need for ensuring fair legal processes for NJSBs. It is expected that around 200 serious criminal cases in Japan will involve NJSB defendants (Ministry of Justice) who will be prosecuted under the saiban-in system after July 2009.
In the study reported in this paper, judges, court interpreters and attorneys were interviewed and court proceedings with a presence of an interpreter were observed. In Japan, for most of those who officially registered as a gaikokujin or ‘alien’ (including permanent visa holders who have Japanese as their first language), an interpreter is arranged for court appearances. This access to an interpreter, however, did not guarantee the use of interpreters in court. On some occasions, despite the interpreters’ presence, the NJSB defendant spoke in Japanese without their assistance while some other parts of the same hearing were mediated by the interpreter. With defendants proficient in Japanese, interpreting occurred when prepared statements were read aloud by the judge, prosecutors and defence attorneys. On the other hand, unscripted interactions such as cross-examination or examination-in-chief were conducted in Japanese without interpreter mediation. While this approach seems to recognise the problems that are faced by people who do not speak the language of the court as their first language, once in the Japanese-only mode of communication, it becomes the responsibility of the NJSB defendant to voice their need for interpreter assistance. This puts at risk the NJSB defendant’s accurate understanding of lawyers’ questions and communication of his/her versions of events through an interpreter. A need for better understanding of such risks will be illustrated by examples of legal professionals’ comments in court on interpreting and communication problems.
The paper concludes that while a high rate of interpreter provision for non-Japanese citizens in court is positive, the partial non-use of interpreters needs to be scrutinised. In particular, it is recommended that legal professionals be made aware of not only linguistic but also social and power issues that may threaten fair legal processes for NJSB defendants.
Terry O’Connell
Australian Director, Real Justice
Restorative Justice – Need For A Different Discourse
Restorative justice language is relatively new, although its practice [in a variety of forms] is evident throughout history across many cultures. The 1989 New Zealand formalisation of restorative justice in its juvenile justice system is recognised as being the catalyst for the proliferation of restorative justice programs in many criminal justice systems.
What have we learnt? Research has shown that on a number of key measures [recidivism, participant satisfaction, time and costs] that most restorative justice programs, deliver better outcomes than formalised justice systems. Yet, there is little or no evidence to shown that despite these promising results, the [restorative justice] experience has resulted in any real change in criminal justice systems. In fact, the opposite appears to be happening with most western societies demanding tougher and harsher sentencing. Why?
There are many reasons and explanations. This paper however identifies the ‘nature of the restorative justice discourse’ as being the most significant reason for why there has been little or no influence. It will argue that this discourse ignores the fundamental premise on which restorative justice practice is built. Rather than promoting debate and discussion on what was not working in criminal justice systems and why, restorative justice practitioners have relied almost exclusively on comparative measures, in the belief that would bring about change.
Fundamental to the development of sound pedagogy is the importance of identifying what practice needs to change, as this provides a solid foundation for building explicit practice. If something works and practitioners are not able to explain why in terms of values, assumptions and the theoretical underpinnings, then this practice is limited. The existing discourse is replete with models, programs, strategies and techniques but very little reference to explicit practice. In part, this helps explain why most [restorative justice] practitioners struggle when asked to articulate the rationale for their practice. It is simply not a requirement of the existing discourse.
This new discourse will require commentators and critics who argue a particular philosophical position to articulate the values, assumptions and theoretical underpinnings needed to shape the practice that would result. This paper will cite two case studies to illustrate [at a practical level] how this is possible. The first involves a Probation Officer whose has learnt to integrate restorative processes in his day-to-day dealing with offenders and their families in courts. The second involves school education where school communities use restorative practice as a basis for building and maintaining sound relationships by ensuring that wrongdoing is seen as an opportunity for learning.
Finally, this paper will argue that this new discourse will have significant practice implications for a range of disciplines, professions and jurisdictions. The resulting practice’s strengthen will be its Socratic nature and focus on effective engagement, dialogue and capacity building.
Pamela O’Neill
Celtic Studies, University of Sydney
Sick-maintenance Laws Indigenous to Early Ireland
This paper examines the sick-maintenance laws indigenous to early Ireland, and questions whether the social benefits of such a system could be equally applicable in social conditions where economic compensation is the norm.
Amongst the earliest recorded strata of indigenous Irish law (sometimes known as ‘Brehon law’) is the tract Bretha Crólige, estimated as dating from the mid to late seventh century. This tract sets out in considerable detail a legal response to the unlawful infliction of a physical injury. The general procedure was for the victim to be taken care of by his kin for nine days, after which he would be formally examined by a physician. If further treatment was required, the perpetrator became personally responsible for providing the appropriate care, medical attention, nursing, and victim’s upkeep, usually provided in the premises of the perpetrator and his kin. Additionally, the perpetrator had to provide a substitute worker to continue the victim’s normal work while he was incapacitated.
Modern studies of this sick-maintenance system have not given particular attention to the potential it offered for repairing damaged social relationships. In a society where a petty kingdom was a small, closed and close-knit community, ongoing disharmony between members had the potential to cause severe damage to the social fabric. Placing the perpetrator and his victim in close proximity for the duration of the healing process would have forced the establishment of some basis for future interaction. At best, it would have facilitated a healing of the relationship and a sympathetic understanding between the parties and their families.
The potential social advantages of the early Irish sick-maintenance system over the payment in lieu which eventually replaced it can be compared to some modern examples of restorative justice activities, where the perpetrator provides a service to the victim (such as domestic chores like mowing lawns or chopping wood) as part of the resolution. The perpetrator is required, at some level, to confront the reality of the damage which has been done from the victim’s perspective, making the justice process far more personal than an alternative which might involve the exchange of anonymous cash. This paper suggests that the benefits of modern restorative justice initiatives might be able to be further enriched by contemplating the issues and examples that can be drawn from Ireland’s indigenous laws.
Teresa Oteiza
Instituto de Linguistica y Literatura
Universidad Austral, Valdivia, Chile
From “the conspiracy of silence” to the recognition of alternative voices. Human right violations in Chile according to the Valech Report (2003)
This paper examines certain patterns of voice realization in the National Report of the Political Prison and Torture Commission (also known as Valech Report), an official discourse produced by the Ministry of Interior in the process of investigation of the human rights violations committed by the military dictatorship (1973-1990). From the perspective of the Appraisal Theory, which is understood as a comprehensive and systematic reorganization of the lexicogrammatical resources used to value social experiences, the article shows that the authors of the Valech Report build a heteroglossic discourse, in which they include in an inscribed manner a multiplicity of voices implicated in the torture and political prison events. The paper also demonstrates that the authors draw on resources of extra-vocalization and intra-vocalization, which along with the presence of nominalizations, instantiate in different degrees alternative positions in the discourse.
Dr Judith Rochecouste
Monash University
Dr Ellen Grote
Consultant, Perth
Associate Professor Graham McKay
Edith Cowan University, Perth
Dr Ann Galloway
Edith Cowan University, Perth
Communication skills in the police and justice systems: An essential for equality
When working with Indigenous clientele, Australia’s justice institutions tend to depend on individuals deemed to have “natural” communication skills. This unstructured approach to cross-cultural communication in legal and justice contexts ignores the culturally distinctive worldviews and ways of communicating of Australian Indigenous peoples. Much of the research literature (eg., Eades, 1996; 1997; 2005; 2007; Powell, 2000) investigating the cross-cultural communication occurring between non-Indigenous legal/justice practitioners and Indigenous clientele emphasises the importance of using appropriate communication strategies when interviewing Aboriginal clientele. However, training in understanding Indigenous worldviews and communication strategies is not mandatory in any institutional training. This presentation will discuss the nature of communication between service providers in the justice system and their Indigenous clientele. It draws on interviews undertaken with legal and justice practitioners in Western Australia, for example non-Aboriginal police officers, court liaison officers, etc. While a number of studies have examined cross-cultural communication issues in the eastern states (eg., Eades 1995; 1996; Walsh 1994; 2008), none has focused on the Western Australian setting, which unfortunately has the highest rate of Indigenous incarceration in Australia (Houston, 2007).
The findings of the present study show that, in the absence of specific training, legal and justice providers use a range of strategies to interact with their Aboriginal clientele. These include maintaining an authoritative stance, relying on past experience with Aboriginal clientele elsewhere, or seeking ways – by trial and error – to communicate appropriately. Overall the study highlights the need for legal and justice institutions to ensure that staff who conduct interviews with Indigenous clientele are provided with appropriate education and training to generate deeper understanding of Aboriginal culture and discourse patterns in order to communicate more effectively and fairly with Indigenous clientele. This is particularly important for restorative justice processes such as Indigenous courts, conferencing and mediation groups which involve non-Indigenous service providers, many of whom will have limited understanding about Aboriginal English ways of communicating.
Eades, Diana (2005) Beyond difference and domination? intercultural communication in legal contexts. In Scott F. Kiesling and Christina Bratt Paulston eds Intercultural Discourse and Communication: the Essential Readings. Malden MA: Blackwell. 304-316.
Eades, Diana (2007) Aboriginal English in the criminal justice system. In Gerhard Leitner and Ian Malcolm eds The habitat of Australia’s Aboriginal languages: Past, present and future. Berlin: Mouton de Gruyter. pp. 299-326.
Eades, D. 1995. Aboriginal English on Trial: The Case for Stuart and Condren. In D. Eades (Ed), Language in Evidence: issues Confronting Aboriginal and Multicultural Australia, Sydney: University of NSW Press.
Eades, D. 1996. Legal recognition of cultural differences in Communication: The case of Robyn Kina, Language & Communication, 6(3): 215-227.
Eades, D. 1997. Language in court: the acceptance of linguistic evidence about Indigenous Australians in the criminal justice system. Australian Aboriginal Studies (Canberra), 1: 5-27.
Houston, J. 2007. Policing around Australia: How have police responded to the Royal Commission’s recommendations. Indigenous Law Bulletin, 6(28): 22-23.
Powell, M. 2000. Interviewing of Aboriginal People, Australian Police Journal, 54(3): 209-212.
Walsh, M, 1994. Interactional styles and the courtroom: an example from Northern Australia. In John Gibbons (Ed) Language and the Law London: Longman, 217-233.
Walsh, M. 2008. ‘Which Way?’: Difficult Options for Vulnerable Witnesses in Australian Aboriginal Land Claim and Native Title Cases. Journal of English Linguistics 36(3): 239-265.
Meredith Rossner
Justice Research Group, University of Western Sydney
The emotional and ritual dynamics of restorative justice conferences: how emotions work
This paper explores the emotional dynamics of restorative justice conferences, using a combination of in depth interviews with conference facilitators and participants, and a close examination of video recordings of conferences. I draw on a theoretical framework grounded in microsociology and the sociology of emotions to explore how ritual components of conferences can produce positive emotions such as solidarity or negative emotions such as anger or fear. I suggest that “successful” conferences are marked by the development of conversational and bodily rhythm between participants, culminating in shared expressions of solidarity. This research develops and implements unique empirical methods to elaborate a theory of restorative justice.
Terry Royce
ELSSA Centre
UTS
Critical Incident Policing: The stages and phases in a crisis negotiation
The NSW Police Service State Protection Group has been offering professional development workshops on negotiation skills for their police negotiators since the 1980s, often drawing upon critical incident case studies of hostage and non-hostage situations (Noesner, 1999). As part of this process they have begun to draw on insights from forensic discourse analysis, with an increasing focus on developing negotiators’ awareness of so-called critical moments in a crisis negotiation. A great deal of the literature dealing with the communication processes recommended for negotiations in these kinds of critical incidents has tended to focus on analyses of word, clause, or sentence-level communicational features, and typically classifies, labels, and interprets the language that can be used in terms of a series of active listening skills, or sets of labeled example phrases (mirroring, emotion labeling, paraphrasing, etc.) that negotiators need to be aware of as a resource for building rapport during an incident (Royce 2006).
This presentation moves away from this word, clause, and sentence-level focus by analysing the stages (Hammer and Rogan 1997) and negotiation phases (McMains & Mullins 2001) of a critical incident involving a negotiator for the NSW Police Service who is tasked with serving a high-risk warrant on a ‘person of interest’ (POI) who is known to be armed, is expected to violently resist, and has demonstrated that he is a serious danger to other people (McMains & Mullins 2001: 39-40). The analysis shows that the incident in question moves through the recognized macro stages for critical incidents, and that he various negotiation phases cycle through and within these stages.
References
McMains M. J. and W. C. Mullins. (2001). 2nd Ed. Crisis Negotiations: Managing critical incidents and hostage situations in law enforcement and corrections. Cincinnati: Anderson Pub. Co.
Royce, T. (2005) “The Negotiator and the Bomber: an interactive analysis of the critical role of active listening in crisis negotiations”, Negotiation Journal 21(1): 5-27.
Noesner, G. W. 1999. Negotiation Concepts for Commanders. FBI Law Enforcement Bulletin January, 68(1): 6-14.
Rogan, R. G. and M. R. Hammer, C. Van Zandt. 1997. Dynamic Processes of Crisis Negotiation. Westport, Connecticut: Praeger.
Farzad Sharifian
Language and Society Centre
Monash University
‘I’m sorry that I can’t say sorry to you’: Apology and ‘sorry’ in Aboriginal English and Australian English
The issue of the ‘apology to stolen generations’ has been a subject of much controversy and debate in Australian public and political discourse. Part of the controversy in the debates arises from the differences that exist between the conceptualisations of ‘sorry’ in Aboriginal English and Australian English. For example, in Aboriginal English the word ‘sorry’ may be used to mean ‘sorrowful’, ‘mourning’, and ‘empathy/worry/care for other people’. In Australian English, the word ‘sorry’ is predominantly used to express sympathy as well as several kinds of apology, and in some cases with legal implications. Also, while in Australian English, apology is usually proffered linguistically, in Aboriginal English the speech act of ‘apology’ may be enacted through non-linguistic means such as silence.
In addition to these differences, in many cases the debates surrounding the issue of apology to stolen generations seems to be characterized by a lack of recognition of the difference between ‘apology’ in everyday conversations and political apology, which has its own typology and characteristics. Political apologies, for example, may be offered for politicians’ ‘social gaffes’ or for ‘serious past events’ for which the politician offering the apology may not be held personally responsible. The latter is mainly viewed as a form of ‘collective’ apology rather than an individual’s responsibility. The third type of political apology is the one which is demanded for damages and offences that are current, for example for misleading the government for going to war with Iraq.
This presentation elaborates on these themes and calls for more systematic and in-depth research on public apology in the wake of what has been termed ‘the age of apology’.
Pamela Snow
School of Psychology, Psychiatry & Psychological Medicine, Monash University
Restorative Justice and the youth offender: Some cautions and caveats
This paper will describe the results of three Australian studies (Snow & Powell, 2004a,b; 2005 2008) that show high rates of undetected oral language impairment in male youth offenders completing community based orders. Our most recent findings (Snow & Powell, 2008) indicate that over 50% of youth offenders on CBOs have a clinically significant deficit in some aspect of oral language, e.g. understanding and / or using figurative language, processing information presented verbally, and constructing a spoken narrative. Our findings identify young offenders as a group at high-risk for undetected language deficits, and highlight some previously unrecognised perils with respect to their passage through the justice system. In this paper, it will be argued that Restorative Justice programs may inadvertently further marginalise the young offender who lacks the language processing and production skills to fully engage in the discourse requirements of this very particular type of interaction. A further cause for concern in this population is the high representation of young people who have been victims of child maltreatment, and may as a consequence, be excessively burdened by a sense of shame and worthlessness. Finally, recent evidence on the neurobiology of childhood trauma gives rise to concerns that alexithymia (lack of emotion words) probably occurs with greater frequency in high-risk young people. A failure to take account of these hidden disabilities could mean that Restorative Justice programs could not only be ineffective, but could actually do harm.
Snow, P.C. & Powell, M.B. (2008). Oral language competence, social skills, and high risk boys: What are juvenile offenders trying to tell us? Children and Society 22, 16-28.
Snow, P.C. & Powell, M.B. (2005). What’s the story? An exploration of narrative language abilities in male juvenile offenders. Psychology, Crime and Law 11(3) 239-253.
Snow, P. & Powell, M. (2004a). Interviewing juvenile offenders: The importance of oral language competence. Current Issues in Criminal Justice 16(2), 220-225.
Snow, P.C. & Powell, M.B. (2004b). Developmental language disorders and adolescent risk: A public-health advocacy role for speech pathologists? International Journal of Speech Language Pathology 6(4), 221-229.
Natalie Stroud
Linguistics, Monash University
The Koori Court of Victoria: A Restorative Justice Perspective of Cultural and Language Difference in an Alternative Sentencing Court
There is currently a high percentage of Indigenous offenders in the Criminal Justice System throughout Australia. In spite of measures aimed to lower the recidivism rate, mainstream methods of punishment have not been particularly effective in rehabilitating a cultural group which has been seriously disadvantaged for over 200 years.
A number of alternative sentencing courts are currently in operation throughout Australia. This paper discusses the relationship between language and the law in the Koori Court of Victoria, and how the problem of cultural and language difference is addressed in the courtroom context. While Indigenous participants in a mainstream court may ‘appear’ competent in the language, cultural differences may lead to a breakdown in communication and misunderstandings in proceedings at the court hearing. In restoring justice for Indigenous offenders, the aim of the Koori Court is to take into account any underlying issues of disadvantage which may have contributed to the initial cause of the offence, and where possible, rehabilitate the offender, using prison as a last resort.
Following the establishment of the first Koori Court at Shepparton in 2002, there are now seven Adult Koori Magistrates’ Courts and two Children’s Koori Courts under the jurisdiction of the Magistrates’ Court of Victoria. In November 2008, Australia’s first Indigenous court in a higher jurisdiction, the Koori Court Division of the County Court, commenced operation at Morwell in country Victoria. To be eligible for a case to be heard in the Koori Court, a person must be Aboriginal or Torres Strait Islander; live or be charged with an offence locally; plead guilty to the offence and show an intention to take responsibility for their actions. All cases that can be heard in the Magistrates’ or County Courts can be heard in the adult Koori Court except for family violence and sexual offences. Eligibility is widened in the Children’s Koori Court.
The Koori Court redefines the process of restorative justice by reframing the role of participants in the courtroom. The informal process of the hearing adapts the legal system to acknowledge the cultural needs of Aboriginal participants, while still upholding the law. The offender is given a voice and time to tell his or her story. Indigenous Elders or respected persons sit at the table with the Magistrate or Judge and all participants, providing cultural and language knowledge. After consideration of all the facts, the Judicial Officer alone makes the final decision on an appropriate sentence.
This paper will review the processes and expansion of the Koori Court program in order to identify if the restorative justice approach of this alternative sentencing court provides a better quality of justice for Indigenous offenders, leading to successful rehabilitation and re-connection with family and community in the long term. An examination will also be made of how specific sociolinguistic features, previously found to be problematic in mainstream courts for Indigenous participants, are being addressed in this court. Any new developments in education and training of legal professionals in cultural and language awareness will be noted, and any challenges experienced will be discussed.
Andrew Vincent
Research Fellow, Department of Accounting and Business Information Systems, Faculty of Economics and Commerce, The University of Melbourne
Constructivist learning and restorative justice
In the last twenty or so years constructivist learning theory has become increasingly important in the design of learning experiences for individuals. Running in parallel with this movement in the education sector has been the rise of the restorative justice paradigm in the legal system. Restorative justice has as one its central tenets that individuals are capable of learning from their offending and consequently can become better members of society. In this short presentation I will examine the major theoretical ideas of constructivist learning theory and postulate how these might be more effectively operationalized in restorative justice programmes.
Michael Walsh
Dept of Linguistics
University of Sydney
Delivering better justice in the Aboriginal land claim and Native Title arena?
Many think of the Aboriginal Land Rights (NT) Act 1976 (Cth) and the Native Title Act 1993 (Cth) as beneficial legislation through which Australian Indigenous people may attempt to regain rights over traditional lands. In some cases this has indeed been the outcome but how well has the process served those involved? In this paper we address three issues: the vulnerability of Indigenous witnesses; the scarification of expert witnesses; and, the quality of the record of proceedings left behind.
Some attempts have been made to make the proceedings less formal than is usual: taking evidence in situ at places of significance to Indigenous people; relaxing the rules of evidence; allowing evidence from groups of people rather than from individuals. Nevertheless there are difficulties despite the quasi-informality of land claim and Native Title proceedings:
Anthropologists mostly hold it as axiomatic that a statement made by an individual in a formal setting, or to a comparative stranger or in an unaccustomed form, may not accord with the ideas and views expressed in a less formal setting. (Palmer 2007: 5)
Anthropologists and other experts have been aware of the vulnerability of Indigenous witnesses (Walsh 2008) and thus have questioned the applicability of the adversarial approach in a cross-cultural context. But it is difficult for lawyers to adjust to alternative strategies even when fellow lawyers (e.g. Gray 2000, Mildren 1999) set out some of the problems to be encountered.
Especially in recent years expert witnesses have come under fire with allegations that they are partisan, lack objectivity and rigour, and, should be scrutinized very closely by the legal process. The resulting scarification has led some highly experienced experts to abandon the field – a field that their potential replacements may not feel encouraged to join.
Briefly, some of the issues of quality in the written transcripts of proceedings are addressed: these range from relatively trivial typographical errors or mistranscriptions through to major misunderstandings. The result is a poorer record of Aboriginal cultural heritage, something that is regrettable not only for the Aboriginal people concerned but also the wider Australian public.
Finally, some suggestions will be made towards improving the delivery of justice in such proceedings.
Michaela Wengert
Department of Juvenile Justice
Youth Justice Conference Manager
This will be a participatory workshop, including small group discussions, looking at a small selection of theoretical and practice issues relating to restorative justice.
• Where does Restorative Justice fit in the Welfare Model – Justice Model discourse?
• Is Restorative Justice consistent with a rights-based agenda?
• Can the needs and rights of both victims and offenders really be addressed in a single justice process?
• What responsibilities and accountabilities do States have to victims and offenders?
• What drives the Community’s expectations of the criminal justice system?
Through discussion and case studies, these questions will be explored and a greater insight gained into the complex dynamics and competing interests active behind the deceptively simple restorative justice process.
The role of convenor becomes the focus point at which these disparate complexities converge, and the convenor is the fulcrum on which these interests balance. The second part of the workshop will briefly discuss the training and support required to assist the convenor in maintaining this balance, and hence the principles and best practice of restorative justice.
Michele Zappavigna
Dept of Linguistics
University of Sydney
Enacting Reconciliation in NSW Youth Justice Conferencing: Is integrative shaming present? A functional linguistic analysis.
Restorative justice is concerned with restoration of victims, offenders and community. Within the restorative model, reintegrative shaming is proposed as an alternative to court sanction. This present paper aims to understand how reconciliation is enacted in NSW Youth Justice Conferencing. Utilising the Systemic Functional Linguistics framework, the recount stage of the conference is positioned in relation to other story genres. In addition, evaluative meanings are analysed under Appraisal theory (Martin & White, 2005), with particular attention to attitudinal resources that are used to construe and negotiate feelings. Some linguistic evidence for reintegrative shaming is found to be present, however at times these are mitigated by the young person’s attempt in deflecting blame and acknowledging responsibility for their behaviour.
Michele Zappavigna
Dept of Linguistics
University of Sydney
Chris Cleirigh
Dept of Linguistics
University of Sydney
Analysing body language in Youth Justice Conferences
This presentation demonstrates a model for gesture analysis developed using Systemic Functional Linguistics. We use the model to investigate the meanings made by an Ethnic Community Liaison Officer in dialogue with a young person in a Youth Justice Conference convened due to an affray offence. Three kinds of body language will be examined:
linguistic (in sync with the rhythm, or in tune with the intonation of language), protolinguistic (a development from infant protolanguage) and epilinguistic (realising semantics). We will show how considering these three kinds of body language can offer a more complete
understanding of what is happening in a conference – for example, assessing the degree of involvement of the participants in the proceedings, and understanding which meanings are given emphasis and how evaluations are made. It is hoped that the method will be of use
to practitioners operating in the field.