TJ Judging in the Bush

About 8 months ago I made the transition from academia back to the bench. I had served on the bench of the Magistrates Court of Western Australia from 2000-2007, with my last 22 months as magistrate in the Perth Drug Court. While based at the Faculty of Law at Monash University, apart from my teaching activities I had been largely involved in research and writing. One of my publications was the Solution-Focused Judging Bench Book published by the Australasian Institute of Judicial Administration and available online at: http://www.aija.org.au/Solution%20Focused%20BB/SFJ%20BB.pdf.

My purpose in writing the bench book was to make therapeutic jurisprudence principles and practices of judging more widely available to judicial officers in Australia, New Zealand and elsewhere. The bench book was intended not only for judicial officers who preside in problem-solving courts, but also those presiding in mainstream courts who were interested in applying therapeutic jurisprudence principles in their work.

In July 2010 I returned to be a magistrate in Western Australia and was posted to Kununurra as the magistrate for the East Kimberley. Kununurra is about a three and a half hour flight from the state capital, Perth and is about an hour’s flight from Darwin in the Northern Territory. As part of my work I travel on circuit to the towns of Wyndham and Halls Creek and to the Aboriginal communities of Balgo, Warmun, Kalumburu and less frequently, Oombulgurri. Warmun was recently evacuated due to extensive flooding and it may take some time before the community can be reconstructed and circuits can resume. The traditional law is strong in the East Kimberley. Some people coming before the court have problems negotiating the legal system due to cultural and language differences.

The vast majority of my cases are criminal, but I also exercise civil, child protection and family law jurisdiction and I am the coroner for the East Kimberley (in Australia coroners are judicial officers). Most of the accused people coming before me in my criminal lists are Aboriginal. There are significant problems with alcohol and family violence in this area. There is a residential treatment facility in Wyndham for those with substance abuse problems and community based counselling programs are also available in the major towns. Until recently there was no family violence perpetrator program. Such a program was held in Kununurra in February and is soon to be held again.

Having written the bench book and other publications advocating the value of a TJ approach, I was intent on applying TJ principles where I could, given the statute and common law governing my work and consistent with justice system values.

There are significant challenges in applying principles of therapeutic jurisprudence in the environment in which I have found myself. Cultural and languages differences between the magistrate, lawyers and other legal system professionals on the one hand and accused people on the other can impede the establishment of a commonality of understanding much less an empathetic bond. In most cases, the court set up in a conventional way, with a significant gap between bench and the accused. The accused are also often quietly spoken and reluctant to speak up in court for various reasons – cultural or psychological.

Where we have been able to use less formal structures, it has made it easier to converse with and develop a rapport with defendants who are coming to court for review in relation to presentence orders. (In Western Australia a court can impose a presentence order where it determines that the offending deserves the imposition of a prison term but that the offender should have the opportunity to address underlying issues to demonstrate that a prison term should not ultimately be imposed. The court can impose program, supervision and curfew conditions and commonly requires the person to come back to court for regular review).

For example, after recent renovations to the Wyndham courthouse – which is not permanently staffed – an omission meant that the key to the court was not brought along on a day I was due to sit at the court. The list was relatively short and I chose to conduct court from the veranda outside the courthouse, with a makeshift bar table being the bench outside the court that accused usually sat on when waiting for their cases to be held. While preserving the essential layout of the court, the informality of the arrangement allowed the accused to speak more comfortably with me and for me to communicate more effectively with them. This example illustrates how the administration of the law must adapt to the needs of the time and the resources available.

We have also been able to use the goals and strategies exercise (see the bench book, chapter 7) with presentence orders. When first placed on a presentence order I ask participants to work on their goals and strategies for their time on the order and to present it to me on the next review date. I can then praise them for their work and support their self-efficacy. I also use it as a reference point in terms of their performance on the order, referring back to it where needed either when goals are being achieved or problems arising. I think this approach is helping to empower participants and to show them that the court has faith in their ability to address their problems. It is too early to make firm conclusions about the application of the strategy but the initial signs are promising.

All this is a work in progress as I try to use TJ principles in the differing judging contexts in which I find myself.