Alternative Law Journal
We live in a world of ever expanding technology and heightened interest in new, fresh breakthrough ideas.
LEADR Brief, Autumn 2000, Vol 10 No 2*
Communities the world over are seeking out alternatives to traditional dispute resolution mechanisms as we struggle through the complex and often difficult times we live in. They are becoming more empowered in their quest to improve the lives of their members. With the globalisation and outsourcing revolution, we will continue to see an even greater shift to community participation and management of social and legal issues.
Many of the services traditionally provided by governments are being increasingly outsourced to community agencies; and volunteers are in even greater demand than in the past. While these functions are, and can be, appropriately undertaken by community groups, government funding remains critical to the success of this shift to greater community participation. The benefits of this shift are the creation of more effective outcomes, with a corresponding sense of community ownership of those outcomes, attributable in part to a release from the less constructive bureaucratic constraints.
One example in the Territory context is the recently established Anglicare operation in Alice Springs which will provide not only much needed financial advisory services but also a family mediation service (Resolve Family Mediation NT). The new mediation service will deal with disputes between separating couples as an alternative to going to court in appropriate situations. This is in keeping with the prevailing family law philosophy that alternative dispute resolution (ADR) should be the primary dispute resolution mechanism in family law matters. The Territory has had such a federally funded service available through Anglicare in Darwin for about five years, though it has only become viable in Alice Springs over the last 18 months.
Similarly, the Fred Hollows Foundation recently combined forces with the Jawoyn Community from Katherine to promote health education. By improving the community’s understanding of the benefits of healthy diets and giving the community a major role in the program, health outcomes should improve considerably.
It is a fact of life that alternatives are gaining wider acceptance in the law. Traditional systems must keep up with the change processes. One area in which there has, until recently, been significant resistance to the introduction of alternative mechanisms is the criminal justice system. More recently, however, there has been significant development in the fields of mediation, conciliation and, importantly, victim–offender conferencing in the criminal arena.
In 1997 and 1998, the NT Ombudsman’s Office developed and introduced the Minor Complaints Resolution Program. This was a joint Police–Ombudsman initiative which required conciliation training for police. Almost 100 police officers were trained and, since that time, many minor complaints have been conciliated with a high rate of success. The program provides an alternative which in appropriate cases provides complainants with a speedier and more user-friendly outcome. A follow-up training program has now been developed and has received positive responses from the participants.
In 1999, the Territory introduced changes to its mandatory sentencing regime in an effort to minimise its impact on juveniles. Unfortunately, these changes only applied to 15 and 16 year olds charged with second property offences, and in its first year was treated with some scepticism. The alternatives included both victim –offender conferencing and a series of diversionary programs for youth. Much work is needed to convince certain segments of the community of the need for such reform in the criminal justice system. Without sufficient promotion, many cannot see the benefits of restorative justice and view it simply as a soft option and an attempt to go easy on crime.
Most political parties want to be seen to be tough on crime and it appears that this focus will not change. We saw mandatory sentencing introduced to prove this tough image. The resultant debate has so far only created more division within the community, and the community has been the major loser as taxpayer dollars continue to be expended without meaningful result.
This resistance notwithstanding, further programs are now being developed. The Territory is to receive additional Commonwealth funding as the result of a recent agreement between the Commonwealth and the Territory to foster the further development of diversionary programs for juveniles. The community will again be given the opportunity to participate in a system in which a much greater focus can be given to rehabilitation and restoration.
On the one hand, under the current system victims for too long have felt that their voice is not adequately heard within the criminal justice arena. On the other, if juveniles can be brought into the restorative justice regime at a far earlier stage than before, the whole community will benefit. Restorative justice can be likened to a form of ADR, in that it is not so much an alternative but rather additional to the existing legal system. When the diversionary programs were introduced in the Territory in 1999, their critics argued that conferencing would not work in Aboriginal communities. In fact the first conferences which did eventually take place were in Aboriginal communities.
To bring about acceptance of change invariably requires a high level of leadership and an acknowledgement that something which has already been tested elsewhere with positive results deserves a go. It provides such leaders with an opportunity to work within a community and can often help achieve outcomes preferable to the existing system. It is too early to tell how well the new Youth Diversionary Programs will be received in the Territory. There are, however, already some positive comments being made from a wide section of the criminal justice system that it is a step in the right direction. The new programs will not be limited to 15 and 16 year olds as before, but will cover 10 to 17 year olds. It will operate pre-charge, in the same fashion as schemes operating successfully in many other Australian jurisdictions. In the past, too many juveniles and their families, victims and their families, and the wider community have all been disadvantaged by not accessing the benefits of restorative justice in appropriate cases.
Recently the government launched NT safe and appointed a facilitator to visit major centres and remote communities to gain community reactions as part of its initiative to bring government agencies and the community together to create grass roots crime prevention programs. While there is much work to be done in improving things in so many areas, such as education, health and social justice, greater community empowerment and action of this nature make a positive difference. This August also saw Professor Ross Homel, Father Frank Brennan and Professor John Braithwaite in Darwin for a Crime and Justice Forum which provided the community with another opportunity to participate in the law and order debate.
Australia has reached the stage where ADR has gained very wide acceptance. At the recent national LEADR conference in Sydney it was refreshing to hear senior politicians and members of the judiciary telling their audience just how mediation is a viable mechanism for the resolution of disputes. Mediation is no longer seen in the community justice context alone; it has taken its rightful place as a successful means to resolve even the most complicated matters.
What had its beginnings in the grass roots community justice context has in most Australian jurisdictions become an acceptable form of primary dispute resolution. Although the mediation movement has had slow beginnings in the Territory, great strides continue to be made in an attempt to catch up with the rest of the country. Provided the community is given the opportunity to support ADR, and it in turn takes on the challenge, there can be no stopping its development and success.
* LEADR is an Australasian, non-profit membership organisation formed in 1989 to serve the community by promoting and facilitating the use of consensual dispute resolution processes generally known as alternative dispute resolution or ADR <<www.leadr.com.au>>.
[*] Thomas Stodulka is Anti-Discrimination Commissioner for the Northern Territory.