Therapeutic Jurisprudence, Human Rights and the Northern Territory Emergency Response
Michael S King
Senior Lecturer, Faculty of Law, Monash University. Former Magistrate,
Perth Drug Court and Geraldton Magistrates Court.
Rob Guthrie
Professor of Workers Compensation and Workplace Law. School of Business
Law, Curtin University of Technology
(article pending publication in Precedent)
Therapeutic jurisprudence is an emerging approach to law that forms part of what Freiberg has called "non-adversarial justice".1 Non-adversarial approaches generally seek less adversarial, more comprehensive and psychologically attuned ways of addressing legal, social and governmental problems.
Therapeutic jurisprudence examines the effect of law, legal processes and legal actors – such as judges and lawyers – on the wellbeing of those influenced by the processes of the law and decisions made by those with formal legal power.2 It asserts that wellbeing should be a factor to be taken into account in each legal context. Sometimes wellbeing has to be subordinate to other legal concerns as in the case when a court imprisons a serious offender to protect the public. But in many cases the application of the principles of therapeutic jurisprudence is consistent with and can assist in bringing into focus other legal system values.
The most well known application of therapeutic jurisprudence has been problem-solving courts such as drug courts but it is also applied to many other areas of the law, including legislative schemes seeking to promote wellbeing. For example, King and Guthrie analysed the Western Australian statutory workers compensation scheme from a therapeutic jurisprudence perspective to see whether its provisions promoted or hindered injured workers’ rehabilitation.3 In workers compensation matters for example the application of therapeutic principles would provide a new perspective on disputed claims and would, if applied appropriately, reduce the prospects of additional harm to those already injured at work.
Therapeutic jurisprudence points out that the law often shares with the behavioural sciences the aim of promoting positive behavioural change and can learn from its findings. For example, therapeutic jurisprudence and behavioural sciences emphasise the importance of self-determination in promoting positive behaviour. In doing so, they follow the contributions of scholars in the fields of law, politics, philosophy, economics, education and spirituality who see it to be essential to the promotion of wellbeing.4 Thus, a common strategy in health is to include the patient in consultations in relation to developing a health plan. This most basic of requirements is often overlooked by decision makers who may seek to pursue a particular outcome, unaware that the patient may require an explanation of the options and may seek to contribute to the over-all plan.
Self-determination is important to wellbeing as it enhances motivation and internal mechanisms that promote successful action.5 On the other hand, coercion and paternalism tend to inhibit those mechanisms and to promote resistance to change. Few people are willing to have their life dictated by others. As the liberal philosopher John Stuart Mill points out, acting contrary to one’s belief can be damaging psychologically and promote inertia while self-determined action engages the faculties necessary to achieve it.6
While these studies focus on the individual, it is suggested that self-determination is also essential for the wellbeing of collectives.7 At an international level, it is seen to be important in promoting collective wellbeing, by determining political status and in promoting economic, social and cultural development. Self-development is a human right upheld by international instruments such as the United Nations Declaration of the Rights of Indigenous Peoples (eg, preamble and Article 3), the United Nations International Covenant on Economic, Social and Cultural Rights (Article 1.1) and the United Nations Charter (Article 1.2). While self-determination in the last two instruments is expressed as a collective right, in the Declaration of the Rights of Indigenous Peoples, it is expressed as an individual and collective right.
Procedural justice is also an important source for therapeutic jurisprudence. Research has found that interaction with legal authorities can affect self-esteem and respect for authorities and the law.8 Procedural justice principles include authorities listening to those within their jurisdiction (voice), taking what they say into account in decision-making (validation) and treating them with respect. Where authorities follow procedural justice principles, the outcomes can be significant: for example one study has found that when police accorded family violence perpetrators procedural justice, the rate of subsequent family violence was less than when they were not.9 If these principles are not followed then people are less likely to respect authorities or the law. In practice this means that where parties are able to contribute to a process the outcomes are more accepted and durable.
The Northern Territory Emergency Response
The Little Children are Sacred Report (the Report) is the final report of an inquiry into child sexual abuse in Aboriginal communities in the Northern Territory. In its processes and recommendations, it takes a therapeutic approach. The Report stated that the inquiry "collected information by listening, learning and drawing on existing knowledge".10 As one would expect in relation to such an inquiry, there was wide consultation with the people and communities affected. They were given voice and validation and they were treated with respect. The Report seeks to promote Aboriginal communities’ self-determination by recommending that they be involved in designing initiatives to address child sexual abuse and its underlying issues and stating that working with them as part of a collaborative effort is vital.11 The report prompted considerable debate and government agitation, but as noted below it generally acted as a catalyst to stir the Howard Federal Coalition government into a frenzy of action.
The Howard Federal Coalition government’s response stands in stark contrast to the Report’s approach. It determined its response without consultation with the Aboriginal communities and people affected by the emergency response. A number of commentators have criticised this approach.12 However, Magistrate Sue Gordon, chairperson of the National Emergency Taskforce appointed to oversee the emergency response told the Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into the emergency response that there had already been enough consultation and that swift action was needed to address the emergency situation.13 Yet the Report stated "There is nothing new or extraordinary in the allegations of sexual abuse of Aboriginal people in the Northern Territory. What is new, perhaps, is the publicity given to them and the raising of awareness of the wider community of the issue".14 Although prompt action was needed to address child abuse, given the Report’s finding, it is questionable whether the desire for speed should have excluded consultation, collaboration and empowerment.
On its face the package of legislation introduced to enable the emergency response is arguably therapeutic in its intent, for example, section 5 of the Northern Territory National Emergency Response Act 2007 (the Act) states its object is to improve the well-being of certain communities in the Northern Territory. However, arguably the means by which these objects is implemented is anti-therapeutic. Significantly, the legislation discloses no intent to involve Aboriginal people in decision-making concerning the nature of the emergency response or its implementation. Indeed, its emphasis is coercive and paternalistic, conferring wide-ranging powers on the federal government to control different aspects of life in Aboriginal communities in the Northern Territory.
The evidence of the anti-therapeutic approach to implementing the emergency response is evident in a number of areas. First, the Act confers significant powers on the government, including the power to compulsorily acquire land occupied by communities, to grant leases of that land back to communities, to direct communities how government-funded services are to be managed, to restrict alcohol in communities and to regulate community stores. Second, the associated Social Security and Other Legislation Amendment (Welfare Reform) Act 2007 confers sweeping powers on the federal government to manage welfare payments of people in declared areas, including the power to quarantine a portion of those payments regardless of recipients’ caring responsibilities or proof of deficient parenting.15 This particular practice has also been criticised for its discriminatory approach because to date only indigenous Australians have been affected by the "voucher" system. Compulsory child health examinations, increased measures to prevent access to pornography and increased police numbers were also strategies of the emergency response.16 The very nature of these compulsory interventions conflicts with the stated object of the Act.
The message implicit in the legislation is that Aboriginal communities and their people are incapable of designing and implementing solutions to their problems – in contradiction to the findings of the Report – and that governments need to take over that responsibility. As Sutton notes, it looks more to the colonial paternalistic past than to contemporary best practice.17 Apart from issues as to self-determination and human rights, using paternalism and coercion to promote individual and community wellbeing is, in most cases, bad government policy as it promotes resistance to change and hinders deep internal motivational mechanisms that bring about transformation in individual and collective behaviour. Such policies also do not promote respect for laws, legal processes and legal actors. They may hinder the very object the laws are intending to achieve.
A Therapeutic Jurisprudence Approach
A collaborative approach to the legal framework and processes to address the problem of Aboriginal child sexual abuse in the Northern Territory is likely to be more effective and therapeutic than the emergency response framework. It would give the communities ownership of the solution and promote individual and collective commitment to its implementation. A collaborative approach would involve government listening to, respecting and working with the communities involved in formulating strategies to address the problem. It is in accord with best practice in addressing problems facing Aboriginal communities.18
A therapeutic approach would also involve Aboriginal communities and government in setting goals to be achieved through any intervention. Goal setting is a technique used in a variety of situations in society – including business, health, education and justice – to give direction to action and to increase motivation of the people involved. Goal setting, providing a vision, is a part of transformational leadership, which promotes higher performance in government, business and educational contexts.19 Goal setting promotes higher performance by directing attention to goal-directed activities, energising people to greater effort, promoting persistence and "leading to the arousal, discovery and/or use of task-relevant knowledge and strategies".20 The participation of government in the goal setting exercise is important given the commitment of tax-payer funded resources to facilitate the project and the need for accountability. The exercise would include government and communities determining appropriate strategies for achieving the goals and targets to be achieved along the way.
A therapeutic approach would also involve contracts between communities and government setting out the goals, strategies and targets, allocation of responsibility between government and communities and appropriate accountability and evaluation mechanisms. The use of contracts would demonstrate the government’s respect for the communities, promote their human right to self-determination and promote their taking responsibility for solving their problems – a factor that Pearson sees to be important in addressing dysfunction in Aboriginal communities.21 It also would demonstrate the government and wider community’s faith in the ability of those communities to resolve their problems; it would promote the self-efficacy of the communities and their members. Self-efficacy has been found to promote motivation and positive cognitive functioning.22
Legislation could be enacted approving the contracts or at least providing a mechanism for them to be established. In so doing, the wider community would be aligning the goals and aspirations of Aboriginal communities with the goals and the good of the whole nation.
It may be argued that this approach would have been too time consuming when urgent action was required to deal with the problem. However, targets could have been put in place to ensure the speedy attainment of agreements and the appropriate legislative framework. Even if a coercive and/or paternalistic approach was required to address a crisis, it did not justify its 5-year length as set out in the Act. A therapeutic, human rights-based approach could have been (and still can be) developed to replace the coercive, paternalistic emergency response.
Conclusion
The Howard Federal government’s response to the Little Children are Sacred Report prompts examination of the means by which governments set out to achieve apparently laudable aims by processes that are anti-therapeutic and in some cases in breach of human rights. For example the failure to consult on the legislative changes represents a denial of the right to self determination at its most basic. The targeted garnisheeing of social security payments represents a discriminatory application of policy and the ability to compulsorily acquire land under the guise of implementing a program of wellbeing are inimicable to the past three decades of progress in relation to Native Title. Clearly the emergency response in the NT was prompted by perceptions that the issues required urgent action and this in order to take the necessary steps issues of process have been cast aside. Therapeutic approaches draw attention to these issues of process because this approach draws links between process and durable outcomes.
Therapeutic jurisprudence provides a useful framework for lawmakers to consider the potential therapeutic effect of legislation and regulations and to weigh therapeutic values with other values they seek to promote. By doing so, they can potentially improve the effectiveness of the law and minimise its anti-therapeutic effects. It deserves more widespread use by government.
1. A Freiberg, ‘Non-Adversarial Approaches to Criminal Justice’, Journal of Judicial Administration, 16, 2007, pp205-222.
2. DB Wexler and BJ Winick (eds), Law in a Therapeutic Key, Carolina Academic Press, 1996, Durham. See the website of the International Network on Therapeutic Jurisprudence at http://www.therapeuticjurisprudence.org and the Australasian Therapeutic Jurisprudence Clearinghouse via a link at http://www.aija.org.au.
3. MS King and R Guthrie, "Using Alternative Therapeutic Intervention Strategies to Reduce the Costs and Anti-Therapeutic Effects of Work Stress and Litigation", Journal of Judicial Administration, 17, 2007, pp30.
4. BJ Winick, ‘On Autonomy: Legal and Psychological Perspectives’ (1992) 37 Villanova Law Review, 37, 1992, pp1705-1777; MS King, ‘What can Mainstream Courts Learn from Problem-Solving Courts?’ Alternative Law Journal, 32, 2007 pp91-95.
5. Winick, n4.
6. JS Mill, On Liberty, Ticknor and Fields, 1863, Boston, p113.
7. JS Cooper, ‘State of the Nation:Therapeutic Jurisprudence and the Evolution of the Right of Self-Determination in International Law’, Behavioral Sciences and the Law 17, 1999, pp607-643 at 610.
8. T Tyler, ‘The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings’, in Wexler and Winick, n1.
9. R Paternoster, R Bachman, R Brame and LW Sherman, ‘Do Fair Procedures Matter? The Effect of Procedural Justice on Spouse Assault’, Law and Society Review, 31, 1997, pp163-204.
10. Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle "Little Children are Sacred" Summary Report, 2007, Northern Territory Government.
11. Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle "Little Children are Sacred", 2007, Northern Territory Government, pp7 and 13 (the Report).
12. The Senate Standing Committee on Legal and Constitutional Affairs, Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 and Four Related Bills Concerning the Northern Territory National Emergency Response, 2007 (the Inquiry); H Nancarrow, ‘The Emergency Response to Family Violence in the Northern Territory: Where’s the Evidence?’ Indigenous Law Bulletin, 7(1), 2007, pp14-16; Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, Human Rights and Equal Opportunity Commission, pp211-212.
13. The Inquiry, n12, pp10-11.
14. The Report, n11, p 5.
15. J Sutton ‘Emergency Welfare Reforms: A Mirror to the Past?’ Alternative Law Journal, 33, 2008, pp27-30.
16. J Howard, ‘To Stabilise and Protect – Little Children are Sacred’, The Sydney Papers, Autumn 2007, 69-76.
17. Sutton, n15, p30.
18. Social Justice Report 2007, n12, p19.
19. MS King, ‘Problem-solving Court Judging, Therapeutic Jurisprudence and Transformational Leadership’, Journal of Judicial Administration, 17, 2008, pp155-177.
20. EA Locke and GP Latham, ‘Building a Practically Useful Theory of Goal Setting and Task Motivation’ (2002) 57 American Psychologist, 57, 2002, pp705-711 at pp706-707.
21. N Pearson, Our Right to Take Responsibility, Noel Pearson and Associates, 2000, Cairns.
22. A Bandura, ‘Self-efficacy’ Harvard Mental Health Letter, 13(9),1997, pp4-6.