Applying Therapeutic Jurisprudence in Regional Areas - The Western Australian Experience
| Author: |
Michael S King SM, BJuris, LLB(Hons), MA, PhD
Stipendiary Magistrate, Magistrates Court, Geraldton, Western
Australia
|
| Issue: |
Volume 10, Number 2 (June 2003)
|
Contents:
Paper delivered to the Psychology and Law International Interdisciplinary Conference, Edinburgh, 7-12 July 2003. My thanks to Chief
Stipendiary Magistrate Heath and to Magistrates Wager and Wilson, Steve Ford, David Wexler and the anonymous referee for reading
and commenting on an earlier draft of this paper.
- Therapeutic jurisprudence asserts that court processes potentially impact participant wellbeing. Court processes developed with a
view to promoting wellbeing or at least limiting any negative impact upon wellbeing can advance justice system goals linked to or
dependant on wellbeing such as offender rehabilitation and healthy relationships. Such processes can also promote public confidence
in the justice system. Since its inception in the late 1980s, the application of therapeutic jurisprudence has expanded from mental
health law to cover diverse aspects of the law including family, criminal, and civil law. A developing area of scholarship and practice
has been the relevance of therapeutic jurisprudence to judging.[1]
- Judging is applied in various geographic, social, cultural and jurisdictional contexts. Regional judicial officers are faced with
challenges that differ from those of their city counterparts. Regional judicial officers sit in smaller communities, may have extensive
circuit commitments and may also exercise a broader jurisdiction than metropolitan judicial officers. In Australia, there is also
the special situation of catering for cultural issues for its indigenous people, with remote communities in Western Australia, the
Northern Territory, Queensland and South Australia maintaining their traditional approach to promoting right behaviour and maintaining
order in their communities.
- This article asserts that differing geographic, social, cultural and jurisdictional contexts affect the manner in which therapeutic
jurisprudence is applied in the judicial process. At the same time, regional judicial officers have advantages over their city cousins
in the potential application of therapeutic jurisprudence in court.
- By way of illustration this article endeavours to show how the unique social, geographic and cultural factors confronting regional
magistrates in Western Australia have shaped their application of therapeutic jurisprudence. It focuses on the regional city of Geraldton
- a centre of fishing, tourism and agriculture with a significant urbanised indigenous population and with therapeutic jurisprudence
being applied across jurisdictions - and Wiluna - a remote town in the far east of Western Australia with an Aboriginal court designed
to meet the needs of its more traditional indigenous population. Reference will also be made to the Yandeyarra circle court project
in the Pilbara region in the northwest of the state. The developments at Wiluna and Yandeyarra reflect a nationwide trend towards
the use of court process more conducive to the cultural needs of indigenous people.[2]
- Metropolitan courts are commonly specialist courts exercising jurisdiction in particular matters such as adult criminal cases, Children's
Court, family law, mining, coronial and civil cases. Sometimes one court exercises criminal and civil jurisdiction. In contrast,
a regional court may be called on to exercise jurisdiction in all of these areas. A morning sitting in a magistrate's court in regional
Western Australia may see the opening and closing of the Court of Petty Sessions, Local Court, Children's Court, Mining Warden's
Court and Coroner's Court as the magistrate exercises varied jurisdiction. Metropolitan judicial officers tend more to be specialists
while regional judicial officers are generalists.
- Regional courts may have only one full time judicial officer stationed at the court. In Western Australia, nine magistrates are resident
in regional areas and an additional magistrate services some regional areas immediately south of the state capital of Perth. These
ten magistrates cover an area not far short of a third of the continent of Australia. All regional magistrates have a circuit where
they visit courts in outlying towns in their magisterial district. These magistrates have a great deal of autonomy in determining
the procedure in the courts in their region. On the one hand, a magistrate open to a therapeutic approach then has the opportunity
to apply therapeutic jurisprudence across a range of jurisdictions. On the other hand, if the resident magistrate is sceptical about
a therapeutic approach then there may be little application of such principles in that district.
- Although statute and precedent lay down to a large degree how a magistrates' court is to act, such courts are less bound by extensive
rules and practice directions than superior courts. As Willis comments: "Magistrates have been less bound by tradition and traditional
ways and have been more responsive to changing needs and new demands placed upon them".[3] The establishment of drug courts and domestic violence courts largely as magistrates' courts is an example of innovation in response
to changing needs.
- All judicial officers have to some degree a measure of discretion as to procedures to be adopted in their own court room and therefore
have the ability to apply therapeutic jurisprudence to court procedures. However, the ability of a judicial officer to apply therapeutic
jurisprudence is more limited in a central court in the city where the officer is but one of many. In Western Australia, therapeutic
jurisprudence has been applied in the city in specialist courts within the magistrates' court system---the Perth Drug Court, Joondalup
Family Violence Court and a special Drug Court list in the Children's Court - rather than as a general approach to dealing with cases.
- Although there is growing interest in the relevance and application of therapeutic jurisprudence to the role of judging, there are
those who are sceptical as to its relevance or as to how far it should be applied. Some may also fear change and the possibility
of an increased workload.[4] Further, larger courts can suffer from personality conflicts that challenge the ability of a court to interact harmoniously.[5] It is more challenging to implement a new approach in such an atmosphere. A one-magistrate court of course does not experience such
problems.
- The areas covered by regional magistrates, although larger geographically, involve smaller communities than those served by those
in large city courts. Regional magistrates become aware of local conditions and issues to a greater degree than is possible in a
busy metropolitan court that caters for a large population base. This local knowledge has permitted the development of therapeutic
jurisprudence based projects sensitive to the needs of diverse communities in regional Western Australia.
- Often the more remote communities in the state have limited access to counselling and other rehabilitation programs. Offenders in
those communities may only have contact with police, the court and a community corrections officer or juvenile justice officer and/or
community work order supervisor in relation to the matter for which they have come to court. In such circumstances, there is a particular
need to use court processes that promote rehabilitation by promoting wellbeing.
- Good reasons have been offered for the establishment of specialist problem solving courts in metropolitan areas to deal with particular
problems such as domestic violence, including the benefit of using specialist personnel, the ability to provide greater attention
to the needs of victims and the ability to promote community development and education as to the problem.[6]
But the more limited incidence of the problem in raw numbers and limited resources in regional areas is likely to make the establishment
of specialist courts there impractical.
- In regional areas the better approach may to be to establish specialist therapeutic court programs and procedures that are flexible
enough to embrace a range of problems. It would also involve the appropriate professionals in related fields according to the particular
needs of the case depending on the availability of professionals. This is done in the Geraldton Alternative Sentencing Regime (GASR),
which endeavours to promote the rehabilitation of those with substance abuse, domestic violence and other offending related problems.
- Therapeutic jurisprudence presents a challenge to judicial officers. From its perspective judicial officers simply should not sit
back and uncritically apply court processes that have been handed down over many years. Precedent is open to question in the light
of new knowledge. As Victorian Chief Magistrate Ian Gray has observed: "There is nothing necessarily sacrosanct about the way the
Courts have done their work in the past. Courts will continue to be expected to adjust their procedures and practices in the future".[7]
- Therapeutic jurisprudence is a new way of looking at the law based on the development of our understanding of the psyche and human
behaviour and their relationship to legal processes. Put simply, therapeutic jurisprudence says that legal processes can impact on
the wellbeing of participants, whether party, witness, juror, judge, court officer or other participant.
- A lack of wellbeing in one or more areas of life often underlies the reason why people come before a court in criminal, family and
some civil cases. If, as therapeutic jurisprudence asserts, court processes potentially affect the wellbeing of those coming before
it, then it is possible that court processes developed and applied without reference to the wellbeing of a participant may aggravate
a problem or prevent its resolution. If a defendant sees a court simply as a vehicle for punishment due to past experience of court
procedures, then he may not then see the possibility of rehabilitation being promoted by the court.[8]
From this standpoint, therapeutic jurisprudence challenges judicial officers to reflect on the approach they take and the processes
they use having regard to their potential impact on the wellbeing of those coming before them.
- In its application to the role of judicial officers, therapeutic jurisprudence ranges from the appropriate way to conduct sentencing
hearings to problem solving courts such as drug courts and family violence courts. However, critics have suggested that sitting in
problem solving courts takes one beyond the judicial role of umpire to one of coach. There, it is said, the judicial officer has
descended from the calm, impartial seat of judgement to the frenetic and partial activity of the arena. For judicial officers themselves
to initiate such courts may also be seen to be initiating policy which is in the province of the executive rather than the judiciary.[9]
However, courts have significant control over their administration and it may be argued that setting up new structures within the
existing court framework is simply "creating an organisational structure to enforce existing laws more effectively"[10]
rather than encroaching on the executive or legislative function.
- Enforcing existing laws more effectively includes the promotion of public confidence in the judiciary. Research suggests that fairness
of the court process is important in determining whether litigants are satisfied with the outcome.[11]
Warren points out that problem solving courts "seek to introduce an 'ethic of care' into court processes and to generally refocus
on the qualities of respect, participation, and trustworthiness often cited by litigants and the general public".[12]
An outcome of therapeutic jurisprudence, therefore, should be greater litigant and public confidence in the judiciary.
- Therapeutic jurisprudence has been commonly associated with problem solving courts but its scope extends well beyond such courts and
in any event not all problem solving courts apply therapeutic jurisprudence. In its application to judging, therapeutic jurisprudence
implies the use of processes to promote the positive involvement of participants in the court process and thereby promote respect
between the judicial officer and participants. Judicial officers actively listening to participants, courteously allowing them to
fully present their case and acknowledging their position in the course of delivering judgement or sentence are examples of techniques
that can have a therapeutic effect.[13]
Processes used in problem solving courts are thought to promote the self-esteem of participants. Such processes include behavioural
contracts, applause, graduation ceremonies, positive interaction with participants in court and encouragement from the bench. Further,
Wexler suggests that, in sentencing, the judicial officer can encourage offenders to acknowledge their offending related problems
and to initiate strategies to deal with them.[14]
- In Western Australia, it appears that the community expects its magistrates not to be slaves to what has gone before but to be more
innovative in their approach and to take a leadership role subject of course to the provisions of the law. In advertisements for
the position of stipendiary magistrate in both 2002 and 2003 the necessity for qualities such as the "capacity to introduce and manage
change" and the ability to take an effective leadership and educational role in the community were emphasised.[15]
Therapeutic jurisprudence provides a useful framework that can address the underlying reasons why people come before a court and
thus can help magistrates to take a leadership role and to introduce and manage change.
- This development in the role of the magistrate fits in with the historical development of magistrate's courts in Australia. Victorian
Chief Magistrate Ian Gray describes magistrate's courts of twenty years ago as follows:
The pattern of the day was for the Magistrates to rattle through the big lists, often by lunchtime and deal with the criminal caseload
by way of a limited number of dispositions - imprisonment, fines, probation and bonds. Relatively speaking, the day then was "nasty,
brutish and short". Things were much simpler. There was little or no technical support for the Courts and an extremely limited range
of services for Court users.[16]
- Today, by virtue of the understanding of the interface of justice problems with health problems, homelessness, unemployment and cultural
displacement, courts are moving towards innovative court procedures and the greater involvement of professionals from the different
disciplines. Today there is a greater range of sentencing options available, increased support for victims and the development of
problem solving courts and diversion programs. Often magistrates' courts are the venue for such changes. This is appropriate given
that about 90% of people appearing in a court in Australia appear before a magistrate.
- In relation to the introduction of the Aboriginal court at Wiluna, Magistrate Wilson spoke with the officer in charge of the Wiluna
police station and with local Justices of the Peace, including one who worked for the local Aboriginal Medical Service.[17]
He then spoke with Aboriginal elders. The purpose was to ascertain local needs and to see how court procedure could be adapted so
that the law could be applied in more culturally sensitive ways. The thinking behind this process was that perhaps one of the reasons
why there has been a high rate of offending among Aboriginal people is that legal processes, including court processes, have not
taken into account the ways in which Aboriginal people leading a traditional lifestyle communicate and order socially harmonious
behaviour within their community. Consultation with the appropriate people in authority within the Aboriginal culture in Wiluna was
an important step towards adapting court procedure and sentencing options. Consultation has extended to the involvement of these
authority figures in the court process.
- The establishment in recent months of the circle court at the Aboriginal community of Yandeyarra, south of Port Hedland in the Pilbara
was based on extensive consultation with the elders and community members.[18]
During 2002 the then Pilbara magistrate, Magistrate Sharratt and the regional manager of magistrates' courts attended meetings at
the community and at the South Hedland courthouse. As in the Wiluna project, Aboriginal elders are consulted as part of the court
process and a special court lay out has been planned. It had been originally envisaged that the parties and magistrate sit in a circle
around a coffee table rather than in the traditional courthouse layout, but following the first sitting of the court in May 2003,
the actual layout to be used is in the process of development.
- In relation to GASR, in April 2001 the Geraldton magistrate called a meeting of representatives from the police, legal profession,
Community and Juvenile Justice Services (who supervise offenders in the community) and local treatment agencies to sound out their
views on establishing a therapeutic alternative sentencing regime at the Geraldton court. Following the endorsement of the project
by the meeting a steering committee comprising representatives of the different agencies was established to design and implement
the project. Four months later a practice direction based on the work of the committee was implemented. Since then the steering committee
has met quarterly to oversee the operation of GASR.
- Similarly, Bunbury court has taken a community oriented approach towards the introduction of an alternative sentencing regime. The
court sponsored a presentation on GASR to local stakeholders. At the next meeting of Bunbury court stakeholders a motion was put
from the floor that an alternative sentencing regime be established. Following the passing of the motion, a steering committee was
established to implement the project.
- Involvement of government and community agencies and community members in the development and operation of GASR, the Wiluna Aboriginal
court and the Yandeyarra circle court has facilitated the design of these projects to meet local needs. The court gains the benefit
of the collective wisdom and local knowledge of the people involved. For example, Wiluna, with a high proportion of the population
being from a traditional indigenous background, now has a court where an authority figure, an elder, from the local Aboriginal community
sits with the magistrate in a court layout designed to mirror the layout of a traditional bush meeting. Geraldton, with its largely
urban population including indigenous and non-indigenous people and a high proportion of repeat offenders with alcohol and illicit
drug problems, has GASR which uses court processes - such as court referral to specialised treatment programs in accordance with
behavioural contracts and with regular review by the court - to facilitate the resolution of these problems for offenders from diverse
backgrounds.
- Further, involvement in the design and operation of the projects promotes commitment to their maintenance and development. Project
achievement is then not seen simply as the achievement of the court but that of all of the agencies involved. In that regard, the
professionals involved share in the satisfaction gained from observing the rehabilitation of GASR participants.
- Regional courts using community consultation and collaboration as a basis for the development of therapeutic projects also recognise
that the social problems that confront the court on a daily basis are multi-faceted, often not only involving justice but also health,
employment, accommodation, family, cultural and historical factors. The administration of justice alone involves a number of agencies
including the legal profession, police, Community and Juvenile Justice Services and the court. A collaborative approach is seen to
be a means of promoting a more comprehensive means of addressing the cases coming before the court.
- GASR seeks to take a comprehensive approach not only in relation to the coordination of the work of professionals from diverse fields
but also in relation to the concept of rehabilitation applied in the regime. Thus, according to the GASR Practice Direction that
came into effect on 2 August 2001:
rehabilitation is more than the absence of offending; it is also the ability to function in society, the ability to deal with life
challenges in a constructive manner and without abusing alcohol or illicit drugs ... The end result of rehabilitation should be the
person's empowerment to lead a productive, harmonious and fulfilling life in the community
- This understanding of rehabilitation is a part of a trend towards using more comprehensive models of human nature as a basis for addressing
the problems of crime and offender rehabilitation. Referring to the Vedic understanding of human nature, King argues that criminal
justice principles such as deterrence and rehabilitation have been informed by limited conceptions of human nature that have limited
their effectiveness. According to this view, criminal justice practice should not be based on an understanding of human behaviour
based on few aspects of human nature but upon an understanding that encompasses the whole person, their social environment and the
interaction between them. In this understanding, a fully rehabilitated individual is one living full potential and able to live in
harmony with and succeed in society.[19]
The attainment of full potential requires the removal of inner obstacles to good health - stress - and the development of self.
- Ward asserts that inherent in every rehabilitation program is a model of good lives, albeit basic in development.[20]
This approach sees rehabilitation in terms of the ability to lead a good life by lawful means. According to this understanding, there
are primary human goods necessary for human wellbeing, for an individual to lead a 'good life'.[21]
The primary goods are derived from "facts" of human life: body (physiological needs), self (psychological abilities needed to live
a good life) and social (the external conditions needed to attain a good life). The idea of there being basic human goods is familiar
to students of jurisprudence and ethics. It is a feature of Rawls' theory of justice[22]
and natural law theory.[23]
- According to Ward, attainment of basic goods requires internal conditions (psychological skills) and external conditions (such as
proper parenting, education, vocational training). An absence of such abilities that promote the lawful attainment of basic human
goods may lead to human wellbeing being sought through illegal means. Rehabilitation then becomes a process of identifying the good
life particular to the individual offender and promoting the internal and external conditions needed to achieve it. Ward comments
that "a necessary condition for the reduction of offending is the instillation of ways of living that are more fulfilling and coherent".[24]
- Birgden argues that rehabilitation within the correctional system has focused on risk management that leads to the protection of the
community but that at the same time it has not adequately addressed the need of offenders for fulfilment in life.[25]
Corrections should address both matters.
- The idea of rehabilitation as promoting happy and constructive lives is also a central theme of Maruna and LeBel's work on re-entry
courts - courts that supervise offenders upon release from prison. They argue for a strengths-based concept of rehabilitation rather
than for one that focuses on offenders as being at risk. From this perspective, it is the social exclusion of being a convicted offender
that places them at risk of further offending. Strategies to address this problem include "opportunities for ex-convicts to make
amends, demonstrate their value and potential, and make positive contributions to their communities".[26]
- The understanding of rehabilitation used by GASR acknowledges that there may be problems in diverse aspects of a person's life that
adversely affects their wellbeing and their ability to cope with day to day situations in life, and in particular with life challenges.
Its programs are directed at developing inner skills and in creating the external conditions that are conducive to leading a fulfilling
life in harmony with society.
- Prior to their admission to GASR, prospective participants are assessed as to their needs according to these internal and external
factors with a view to taking a holistic approach to their rehabilitation. Participants provide input as to their rehabilitation
needs. A community corrections officer then prepares a treatment agenda for presentation to and approval by the court. Strategies
and programs can include substance abuse counselling (residential and non-residential), psychological counselling, sexual assault
referral centre programs, medical treatment, domestic violence programs, financial planning, vocational guidance, accommodation support,
recreation programs and stress reduction programs. The more extensive the participant's needs, the more intensive the program agenda
is likely to be. In addition, strategies to safeguard against offending and breach of program conditions such as random urinalysis,
a curfew and electronic monitoring of the curfew may be used in higher risk cases.
- As to stress reduction, there is growing evidence that stressful life events contribute to substance abuse[27]
and offending behaviour[28]
Childhood abuse, relationship breakdown, and loss of employment are examples of events that generate stress. There is evidence that
stress interferes with brain functioning and with the various systems in the body.[29]
Yet, the problem of stress has largely not been addressed in the criminal justice system. Indeed, one of the primary sentencing options
- imprisonment - involves sending an offender to arguably one of the most stressful living environments.[30]
- GASR has sought to address the problem of stress in offenders' lives in an innovative manner - by their practice of the stress reduction
and self-development technique, Transcendental Meditation (TM). The technique was introduced to the West over 40 years ago by the
Vedic scholar Maharishi Mahesh Yogi. TM is a simple, natural mental technique practised sitting easily with the eyes closed. During
the practice, the activity of the mind spontaneously settles down producing a state of inner alertness where the body is deeply rested.
The practice requires no change in lifestyle or beliefs. Forty-three offenders and 11 program and community corrections officers
in Geraldton have learnt the practice to date.
- Research has found that TM practice produces a state whose characteristics are the opposite of highly stressed states, a state where
the mind is alert but the body deeply rested.[31]
Regular experience of this state dissolves deep-rooted stress and fatigue. Research has measured decreased substance abuse, anxiety
and recidivism, improved health and psychological development through the practice.[32]
Meta-analyses suggest TM has a more significant effect in reducing substance abuse and trait anxiety and in promoting self-actualisation
than other approaches to stress reduction.[33]
TM practice is currently being imposed as a condition of probation by some of the judges of the 22nd Circuit Court of Missouri.[34]
GASR participants report decreased stress levels, anxiety and substance abuse and improved relationships through the practice of
TM.[35]
Community corrections officers also notice that their clients practising TM are calmer, less anxious, have clearer thinking and decision
making ability, and more readily engage in other rehabilitation programs and with their community corrections officer than before
their practice commenced.
- The GASR self-evaluation suggests that GASR promotes wellbeing in various domains of life, with many participants reporting decreased
substance abuse, improvements in physical and mental health, financial planning, motivation to work or study and improvements in
personal relationships.
- The Wiluna Aboriginal court also promotes the wellbeing of participants by reason of its unique approach. It seeks to dispense justice
in a culturally meaningful way to offenders from a traditional background and to redress deficiencies that have been apparent in
the dispensation of justice to Aboriginal people. Aboriginal people from a traditional background may have a limited understanding
of the nature of court procedure.[36]
A lack of understanding promotes alienation and an inability to negotiate the system properly.
- In addition, "Bush Courts" - courts constituted by a magistrate sitting in remote Aboriginal communities or in remote towns - have
been criticised as being sub-standard.[37]
Criticisms include a lack of cultural awareness and sensitivity to Aboriginal people displayed by some magistrates and other court
personnel, inadequate court and legal aid resources to deal with high case loads, a lack of translating services, and inadequate
court processes to dispense justice given the cultural context in which it is dispensed.
- Involvement of Aboriginal elders in the Wiluna court process of dealing with offenders from a traditional background promotes respect
for these custodians of traditional law and for the law while at the same time meeting the need for the dispensation of justice according
to legislation. The Wiluna court uses a layout that has been inspired by the layout of a traditional bush meeting, the elders speak
to the offender in their traditional language about his actions following a plea of guilty, and the magistrate sentences offenders
following submissions from defence and prosecution.[38]
- The Yandeyarra project not only seeks to promote the rehabilitation of Aboriginal offenders but also to strengthen the Yandeyarra
community. Thus, offenders originating from the community who appear in the South Hedland court can, if the community consents, be
remanded on a condition of bail that they return to the community to reside there until they appear in the Yandeyarra circle court.
The South Hedland court thereby affirms the status of the community elders who lead the community and the role of the community in
helping to prevent crime and in promoting the rehabilitation of offenders. The holding of a court within the community involving
community elders is expected to have a similar effect.
- Of note are the different aspects of wellbeing that are the focus of GASR and the Wiluna and Yandeyarra projects. The first seeks
a holistic conception of wellbeing in the context of life in an urban environment while the others seek to make court processes more
meaningful and effective in promoting rehabilitation for traditional people. As to Wiluna and Yandeyarra, the positive impact on
wellbeing is said to extend beyond the individual participants and include the indigenous communities that they serve.
- One of the critical issues in the development of therapeutic jurisprudence has been to define what is meant by 'therapeutic'. Rather
than setting in stone a definition of therapeutic, Wexler prefers leaving the concept "rough around the edges" so as to promote broad
scholarship in areas of interest to law and psychology. But he suggests that the area of the literature principally relevant to therapeutic
jurisprudence comprises "those articles, whether expressly related to law or not, that are written on cognitive-behavioural topics
by and for mental health professionals - psychiatrists, psychologists, social workers, counsellors, and criminal justice and correctional
professionals".[39]
The scope of 'therapeutic' in therapeutic jurisprudence is therefore broad enough to encompass all of the projects discussed in this
article.
- Regional courts have the unique opportunity of taking a therapeutic approach across jurisdictions. For example, in Geraldton not only
does the court have an alternative sentencing regime that operates in the criminal jurisdiction of the Court of Petty Sessions and
the Children's Court but also therapeutic jurisprudence has influenced the way in which the magistrates acts when exercising jurisdiction
in other areas of the law.
- In Western Australia, as in other Australian jurisdictions, regional magistrates are also coroners. The Geraldton magistrate has revised
the way in which he writes his decisions relating to the cause of death in the light of therapeutic jurisprudence. Previously, he
had always referred to the dead person as "the deceased" and their background only referred to insofar as it related to the cause
of death. Now, he always refers to the person by their formal title and begins with a short paragraph containing personal details
placing the person in a social and family context. The thinking behind the change was that the family would better appreciate reasons
that acknowledged the humanity of their loved one than those that appeared to reduce the person to an object.
- The Geraldton court in conjunction with relevant government and community agencies is also about to launch a program that applies
therapeutic jurisprudence in restraining order applications. It is called the "Roads to Healing Program".[40]
Restraining orders are granted by magistrates and restrain an alleged perpetrator or potential perpetrator of violence or certain
other misbehaviour from, amongst other things, contacting a person, intimidating a person or entering upon or damaging his or her
property. However, magistrates have been frustrated by a limited ability to refer parties to appropriate treatment agencies or counselling
to address underlying issues. The Roads to Healing Program attempts to redress this problem by alerting parties as to the program
with its treatment options and allowing for cases to be adjourned for parties to undergo treatment with regular review by the court
pursuant to a behavioural contract while at the same time providing the protection of a restraining order for the alleged victim
if needed. The program is meant to promote healing for both perpetrators and victims.
- Influenced by the positive results from GASR, the Geraldton offices of the Department of Community Development and Aboriginal Legal
Service, the Geraldton Resource Centre and the court have developed a proposed therapeutic track in child welfare proceedings called
the "Family Care Program". In cases where there is a viable prospect of children at risk being returned to the family provided certain
problems are redressed and the parties consent, the case can be admitted to the program. A team based approach, behavioural contracts,
regular review by the court, and a holistic approach to promoting wellbeing and parenting skills that embraces all of the diverse
domains of the parents' and family's life are important features of the program.
- The effectiveness of the Roads to Healing Program and the Family Care Program are yet to be tested. However, the use of therapeutic
jurisprudence in addressing domestic violence and child welfare issues elsewhere suggests the potential value of these programs.
- Judging in regional areas is a qualitatively different experience from judging in metropolitan areas due to differences in geographical,
social and cultural factors. The application of therapeutic jurisprudence to judging in regional areas is necessarily shaped by those
factors. However, regional areas also present opportunities for the application of therapeutic jurisprudence to judging that may
not be available to judicial officers in the city. Judging in regional areas deserves to be a particular area of study in the application
of therapeutic jurisprudence.
[1]
D Wexler and B Winick (eds), Judging in a Therapeutic Key (Carolina Academic Press, Durham 2003).
[2]
I Gray, "The Peoples Court: Into the Future" AIJA Oration, September 2002. Available at: http://www.aija.org.au/onlinepub.htm See also the web sites for Aboriginal courts in South Australia and Queensland respectively: http://www.courts.sa.gov.au/courts/magistrates/aboriginal_court_days.html; http://www.justice.qld.gov.au/courts/factsht/qc_fact7.htm.
[3]
J Willis, "The Magistracy: The Undervalued Work-Horse of the Court System" (2001) 18 Law in Context 129.
[4]
R Fritzler and L Simon, "Creating a Domestic Violence Court: Combat in the Trenches" (2000). 37 Court Review 28, 36.
[5]
T Blackshield, M Coper and G Williams, The Oxford Companion to the High Court of Australia. (Oxford University Press, South Melbourne,
2001) pp 528-533.
[6]
B Winick, "Applying the Law Therapeutically in Domestic Violence Cases" (2000) 69 UMKC L. Rev 33.
[7]
Gray, n 2.
[8]
M King, "Geraldton Alternative Sentencing Regime: Applying Therapeutic and Holistic Jurisprudence in the Bush" (2002) 26 Crim LJ 260, 270; M King and W Duguid, (2003) "Geraldton Alternative Sentencing Regime: First Year Self-Evaluation" Curtin University of Technology
School of Business Law Working Paper Series 03:01.
[9]
See, for example: M Hoffman, "The Drug Court Scandal" (2000) 78 North Carolina L Rev 1437, 1523-1533; A Freiberg, "Problem-Oriented
Courts: Innovative Solutions to Intractable Problems" 11 Journal of Judicial Administration 8, 23.
[10]
Fritzler and Simon, n 4.
[11]
T Tyler, "The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings" in David Wexler and
Bruce Winick (eds.), Law in a Therapeutic Key (Carolina Academic Press, Durham, 1995) p 3; R Hunter, "Through the Looking Glass:
Clients' Perceptions and Experiences of Family Law Litigation" (2002) 16 Australian Journal of Family Law 7.
[12]
R Warren, "Public Trust and Procedural Justice" (2000) Court Review 12, 15.
[13]
C Petrucci. "Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic
Jurisprudence" (2002) 38 Criminal Law Bulletin 263.
[14]
D Wexler, "Robes and Rehabilitation: How Judges Can Help Offenders 'Make Good'," (2001) 38 Court Review 18.
[15]
M King and S Wilson, "Magistrates as Innovators" (2002) 29(11) Brief 7.
[16]
Gray, n 2.
[17]
Personal communication with Magistrate Stephen Wilson on 30 March 2003.
[18]
Personal communication with Steve Ford on 25 April 2003.
[19]
M King, "Deterrence, Rehabilitation and Human Nature: The Need for a Holistic Approach to Offenders" (2000) 24 Crim LJ 335.
[20]
T Ward, "Good Lives and the Rehabilitation of Offenders Promises and Problems" (2002) 7 Aggression and Violent Behavior 513.
[21]
T Ward, "The Management of Risk and the Design of Good Lives" (2002) 37 Australian Psychologist 172; A Birgden, "Therapeutic Jurisprudence
and "Good Lives": A Rehabilitation Framework for Corrections" (2002) 37 Australian Psychologist 180.
[22]
J Rawls, A Theory of Justice (The Belknap Press, Harvard, 1971).
[23]
J Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford, 1980).
[24]
Ward, n 20, at 514.
[25]
Birgden, n22.
[26]
S Maruna and T LeBel, "Welcome Home? Examining the "Reentry Court" Concept from a Strengths-based Perspective" (2003) 4 Western Criminology Review 91, 97.
[27]
National Institute on Drug Abuse. Stress and Drug Abuse. Available at: http://www.drugabuse.gov/DrugPages/Stress.html.
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King, n 19, at 339-341.
[29]
R Sapolsky, "Why stress is bad for your brain". (1996) 273 Science 749; W Lovallo, Stress and health: Biological and psychological
interactions (Sage, Thousand Oaks, 1997).
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King, n 19, at 340-341.
[31]
R Jevning, R Wallace and M Biedebach, "The Physiology of Meditation: A Review. A Wakeful Hypometabolic Integrated Response" (1992)
16 Neuroscience and Biobehavioural Reviews 415
[32]
King, n 19; M Dillbeck and A Abrams, "The Application of the Transcendental Meditation Program to Corrections" (1987) 11 International Journal of Comparative and Applied Criminal Justice 111; C Alexander, P Robinson and M Rainforth, "Treating and Preventing Alcohol, Nicotine, and Drug Abuse through Transcendental Meditation"
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[34]
See the website of The Enlightened Sentencing Project: www.tesp.org.
[35]
King, n 8.
[36]
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1. 4.2.4.4. Available at: http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/rciadic/regional/wa_volume1/; N Siegel, "Bush Courts of Remote Australia" (2002) 76 Aust LJ 640, 642.
[37]
N Siegel, "The Reign of the Kangaroo Court? Exposing Deficient Criminal Process in Australian Aboriginal Communities: Bush Court"
(2002) 1 Indigenous LJ 113.
[38]
King and Wilson, n 15, p 9.
[39]
D Wexler, "Reflections on the Scope of Therapeutic Jurisprudence" in Wexler and Winick, n 11, p 811, pp 814-815.
[40]
M King, "Roads to Healing: Therapeutic Jurisprudence, Domestic Violence and Restraining Order Applications" (submitted).
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