• Terms of reference
• Mediation and the needs of Indigenous people
• Current provision
• Indigenous CJCs
• Liaison with Indigenous people
• Representation on the CJCs Council
• Inclusion in an objects clause?

TERMS OF REFERENCE

6.1 The terms of reference for this review include the requirement that the Commission consider:

Whether the current structure of Community Justice Centres sufficiently meets the needs of the indigenous community of New South Wales.

6.2 Some submissions suggested that if specific reference were to be made to the needs of Indigenous people there would also need to be recognition of other ethnic groups in order to avoid the appearance of bias against these and other communities of interest.¹ This view, however, ignores the fact that Indigenous people are the original inhabitants of Australia and the particular history of dispossession of Indigenous people and inappropriate treatment by the justice system.² In many cases this requires a response that is different to that which needs to be adopted for immigrant cultural, ethnic and other interest groups. This is reflected in the four principles contained in the New South Wales Attorney General’s Aboriginal Justice Agreement:

1. Accepting that Aboriginal people know their own problems and issues and that Aboriginal people are best situated to solve those problems.

2. Actively encouraging and supporting local Aboriginal community innovation which aims to address justice problems and concerns.

3. Recognising and respecting the significant cultural diversity in the NSW Aboriginal communities and recognizing that each community has its own distinct problems and needs.

4. Acknowledging that crime in Aboriginal communities has a deep set of underlying causes and that we share responsibility in addressing these causes.³

1. To improve Aboriginal access to justice.

2. To improve the quality and relevance of justice that Aboriginal people receive.

3. To provide a framework for ongoing partnership between the Aboriginal Justice Advisory Council and the Attorney General in addressing justice issues.

4. To allow Aboriginal people to take a leadership role and make key decisions in solving their own justice concerns.⁴

MEDIATION AND THE NEEDS OF INDIGENOUS PEOPLE

6.3 In light of the dispossession and oppression of Indigenous people, the provision of mediation services to Indigenous communities is important because it may allow for the resolution of disputes for some Aboriginal people without recourse to the formal justice system.⁵ There is the potential, within community mediation, for Indigenous people to develop methods of resolving disputes that are appropriate to Indigenous culture and needs.⁶ However, this is not to say that community mediation currently does, or will, deal adequately with Indigenous culture and needs.⁷ Questions also arise as to what type of government agency, if any, should be involved in helping Indigenous people to develop methods of mediation that are appropriate to their culture and needs.⁸

6.4 Commentators have highlighted the problems associated with imposing the forms of mediation developed for the general community as a “solution” for Indigenous people:

A reading of anthropological and related literature in regard to Australian Aboriginal studies leaves little doubt that the traditional Aboriginal world views are ... ontologically and epistemologically different; Aboriginal culture and non-Aboriginal Australian culture in their conceptualisation of how people relate to each other and how people relate to the universe are fundamentally different. It may therefore follow that a transplanted mainstream dispute resolution process will not necessarily strike.⁹

6.5 Particular adaptations may be necessary for mediation to work in Indigenous communities, for example, in the areas of:¹¹

• voluntary participation, which may need to be reassessed in light of the needs of the welfare of a particular community as opposed to those of particular individuals within it;
• confidentiality of disputes, which may prove difficult to achieve if a dispute becomes a multi-party dispute, involving family, friends and other community members;¹²
• neutrality of mediators, which may be difficult to achieve if the mediators come from the same community as the disputants, or if the mediator is expected to carry “moral authority” within the relevant community;¹³
• the scope of matters appropriate for mediation, for example, in some communities, issues of domestic violence may be suitable for mediation, especially given the close-knit nature of some Indigenous communities and also the unwillingness of some victims to seek protection from the formal justice system (in light of the historical experience of Indigenous people in the justice system).¹⁴

ISSUE 47
(a) What are the needs of Indigenous people in relation to the activities of CJCs?

(b) Are the services that are currently provided to Indigenous people by CJCs appropriate?

(c) How could CJCs better meet the needs of Indigenous people?

6.7 CJCs currently make some provision for the needs of Indigenous people and communities, principally through their mediation and training program and the Aboriginal and Torres Strait Islander network. This is consistent with one of CJCs’ “key objectives” which is to provide:

Tailored services and programs which meet the needs of Aboriginal and Torres Strait Islander communities, people from culturally diverse backgrounds, and people with disabilities.¹⁵

6.8 In recognition of the fact that the usual recruitment and training methods were not providing adequate services to Indigenous people, CJCs have recently recruited and trained 15 Aboriginal mediators in the CJCs’ northern region.¹⁶ The training program was based on the CJCs’ basic mediation training¹⁷ and was adapted for Aboriginal and Torres Strait Islander people, the aim being to meet the needs of participants and provide culturally appropriate mediation. The training was made possible by funding from the Department of Community Services which was linked to an agreement that CJCs would mediate care and protection orders under the Children and Young Persons (Care and Protection) Act 1998 (NSW).¹⁸ Sixty percent of Department of Community Services clients in these cases are Indigenous people.¹⁹ The Aboriginal mediators were accredited in May 2003 and are now mediating through the northern region CJC office.²⁰

6.9 This approach would appear to be similar to that which was adopted in Queensland in 1992 when a program of mediation training and accreditation of Aboriginal and Torres Strait Islander people was established. The program, which was based on the Dispute Resolution Centres’ community justice program, was also adapted to the needs of Indigenous people.²¹ The aim was to train Indigenous people to go into the communities and mediate disputes.

Broader provision for Indigenous mediators

6.10 In addition to the 15 Aboriginal mediators working in the northern region, there are also some other Indigenous mediators in the other CJC regions. However, more Indigenous mediators are needed in all regions, not only to assist with disputes within Indigenous communities but also in situations where only one of the parties to a dispute is of Aboriginal or Torres Strait Islander background. The presence of Indigenous mediators may help to counter such factors as historical and structural power imbalances when non-Indigenous people are also parties to the mediation.²²

6.11 The need for mediators with Indigenous backgrounds was highlighted by the Department of Housing’s submission. Responses from their local client service teams suggested that a mediator with an Indigenous background would be useful so that Indigenous clients would feel “supported”.²³ The Coalition of Aboriginal Legal Services also emphasised the need to train mediators who reflect the diversity of Indigenous communities in the State, having regard to age, sex, tribe, language and background.²⁴ The program in the northern region needs to be evaluated before consideration can be given to expanding the service.

ISSUE 48
What provision, if any, should be made to ensure there are adequate numbers of Indigenous mediators for CJCs?

6.12 CJCs have established an Aboriginal and Torres Strait Islander Network to advise the CJCs Directorate on matters concerning Indigenous communities and mediation. The Network has no formal status within the Attorney General’s Department. Membership of the Network was originally based on current status as a CJC mediator and self-identification as an Aboriginal or Torres Strait Islander person. However, the requirement of self-identification has recently been replaced by the three-part test required for Aboriginal Land Council membership, namely, that the mediator must be:

• a member of the Aboriginal race of Australia;
• identify as an Aboriginal person; and
• be accepted by the Aboriginal community as an Aboriginal person.²⁵

6.13 The Network has undertaken a number of tasks, including:

• “work on the design of the most appropriate model of service delivery to Aboriginal and Torres Strait Islander communities”;²⁸
• involvement in training programs for Indigenous staff of the Attorney General’s Department.²⁹


ISSUE 49
Is the CJCs Aboriginal and Torres Strait Islander Network the best mechanism for CJCs to identify and meet the needs of Indigenous people?

6.14 The New South Wales Legal Aid Commission has established an Aboriginal and Torres Strait Islander Family Mediation project. The project has been operating in south west Sydney and Dubbo since April 2002. Each location has an Aboriginal field officer who provides an intake and promotion service. Twenty four mediators have been trained for the program, 18 of whom are Indigenous.³⁰

INDIGENOUS CJCs

6.15 The possibility of culturally-based community-specific CJCs has been raised in recent years, in particular it has been suggested that an Aboriginal and Torres Strait Islander CJC be established to better meet the needs of Indigenous people.³¹ One commentator has suggested that “the Aboriginal community needs more than to have programs of mediation ... which exist within the dominant legal structures merely transferred into the Aboriginal community with mediators who have had cultural training so that they are sensitive to Aboriginal concerns”.³²

6.16 One of the main questions that arises in the context of such proposals is the extent to which an Indigenous CJC should be carried on under the umbrella of a government department and the extent to which it should be directed by Indigenous people themselves. Indigenous communities are clearly able to develop their own methods of resolving disputes.³³

6.17 One commentator has observed that for Indigenous mediation projects to work:

it is vital that an approach other than a bureaucratic and impersonal one be adopted. The literature is strewn with dismal failures of impositions upon Aboriginal communities essentially telling them what has been good for them. The present mode is to adopt an extensive consultative approach requiring high levels of physical endurance, patience and the ability to listen.³⁴

6.19 Another commentator has suggested that it may be preferable to attach mediation services to existing Indigenous community infrastructure, for example, Local Aboriginal Land Councils, community justice programs and health and housing agencies.³⁶

6.20 At present, future directions with regards to Indigenous CJCs will depend, in part, on an assessment of the current program being operated by the northern region CJC.³⁷

ISSUE 50
(a) Should Indigenous CJCs be established?

(b) If so, who should be involved in their operation and to what extent?

(c) What adaptations should be made to meet the needs of Indigenous people?

6.21 Rather than proceeding with developing Indigenous CJCs, it can be argued that each of the current CJCs, organised as they are in geographic regions, should be equipped to provide services to, and meet the needs of, Indigenous communities in their regions.

6.22 One approach would be to have staff dedicated to liaison with Indigenous communities and people across the State. For example, in 1994 CJCs employed an Aboriginal employment co-ordinator. The co-ordinator was to be involved in statewide liaison with Aboriginal communities and was intended to “involve Aboriginal communities in all aspects of Community Justice Centre processes”. Specific roles of the position included:

• analysis of the mediation recruitment process;
• development of programs relating to Aboriginal and Torres Strait Islander people;
• community liaison and education;
• preparation and development of cultural awareness training relevant to CJC mediators; and
• representation of CJCs at meetings and conferences.³⁸

6.23 Even if a distinct Indigenous CJC were to be established, a liaison officer would be a useful way of maintaining strong links between the Indigenous and non-Indigenous services, so that each could learn from the other.

ISSUE 51
How should CJCs liaise with Indigenous people and communities?

6.24 Indigenous representation is currently not provided for on the CJCs Council. Assuming that a role is preserved for the CJCs Council, the issue of the representation of Aboriginal and Torres Strait Islander people needs to be addressed. One submission has drawn attention to this fact and suggested that such representation “would further enhance the current focus on improving outcomes for Aboriginal people within the Criminal Justice agencies”.⁴¹ There is currently specific provision for one Aboriginal or Torres Strait Islander mediator in the CJCs’ Professional Reference Group.⁴²

6.25 In New South Wales legislation an Aboriginal person is generally defined as follows:

Aboriginal person means a person who:

(a) is a member of the Aboriginal race of Australia, and

(b) identifies as an Aboriginal person, and

(c) is accepted by the Aboriginal community as an Aboriginal person.⁴³

6.27 In some cases the provisions specify, amongst other necessary qualifications, that the person must be an Aboriginal person or Torres Strait Islander. For example:

• the Law and Justice Foundation Board must include four persons “who have, in the opinion of the Attorney General, special expertise” at least one of whom must be an Aboriginal person or Torres Strait Islander;⁴⁵
• the Boards of Management under Division 6 of Part 4A of the National Parks and Wildlife Act 1974 (NSW) must consist of “at least 11, but not more than 13, members appointed by the Minister with the concurrence of the Minister administering the Aboriginal Land Rights Act 1983”, the majority of whom “are to be Aboriginal owners of the lands concerned nominated by themselves or by another Aboriginal owner of the lands with the consent of the nominee” the Minister having had “regard to such matters as the gender of the nominees and their cultural affiliations and family groupings in an endeavour to ensure that a representative group of members is appointed”;⁴⁶
• regional advisory committees under the National Parks and Wildlife Act 1974 (NSW) are to include “at least 2 Aboriginal persons” and such other persons who, in the opinion of the Minister, have qualifications in any nine specified areas of expertise including “expertise in Aboriginal Cultural Heritage”;⁴⁷
• the Board of the Nature Conservation Trust must consist of ten part-time members “at least one of whom must be an Aboriginal person”;⁴⁸
• the Jenolan Caves Reserve Trust Board is to include “2 members nominated by the New South Wales Aboriginal Land Council, each of the persons nominated being: (i) a person who is a member of a Local Aboriginal Land Council in any area in which any of the Jenolan Caves Reserve Trust lands is located, or (ii) a person who is, in the opinion of the New South Wales Aboriginal Land Council, a traditional custodian in such an area”;⁴⁹
• the Aboriginal Cultural Heritage Advisory Committee which consists of “one member nominated by the New South Wales Aboriginal Land Council and 10 other members appointed from the following:

  (a) nominees of Aboriginal elders groups, (b) registered native title claimants, (c) Aboriginal owners listed on the register under the Aboriginal Land Rights Act 1983”;⁵⁰

• management committees under the Water Management Act 2000 (NSW) must include at least two members who are “Aboriginal persons appointed to represent the interests of Aboriginal persons”.⁵¹

• the Coastal Council must include “a person nominated by the Minister for Aboriginal Affairs”;⁵²
• the Fisheries Resource Conservation and Assessment Council is to include “indigenous representatives” appointed by the Minister following nominations sought from the New South Wales Aboriginal Land Council;⁵³
• the Geographical Names Board must include “a person nominated by the New South Wales Aboriginal Land Council”;⁵⁴
• the Marine Parks Advisory Council must include “one member to represent the interests of Aboriginal people”;⁵⁵
• an Arbitration Panel under the Mining Act 1992 (NSW) is “to consist of one or more members appointed by the Minister after consultation with the Minister for Aboriginal Affairs and the Minister for Agriculture”;⁵⁶
• the Native Vegetation Advisory Council and a Regional Vegetation Committee under the Native Vegetation Conservation Act 1997 (NSW) must include “2 representatives of Aboriginal interests nominated by the New South Wales Aboriginal Land Council”;⁵⁷
• the Western Lands Advisory Council is to include two people “to represent the interests of Aboriginal people, of whom one is to be appointed on the nomination of the New South Wales Aboriginal Land Council”;⁵⁸
• the Youth Justice Advisory Committee is to have “a representative nominated by the Aboriginal Justice Advisory Council”.⁵⁹

• the Board of Studies should include (“as far as practicable”) “at least one member who has professional experience or demonstrated interest in Aboriginal education”;⁶⁰
• the Marine and Estuarine Recreational Charter Management Advisory Committee must include “a person who, in the opinion of the Minister, has expertise in Aboriginal culture”;⁶¹
• the Heritage Council must include six persons who “in the opinion of the Minister, possess suitable qualifications, knowledge and skills” relating to any nine specified areas of interest, including “Aboriginal heritage”;⁶²
• the National Parks and Wildlife Advisory Council is to include one person “with expertise and experience in Aboriginal cultural heritage conservation” and two persons “who are members of the Aboriginal Cultural Heritage Advisory Committee and have been nominated by that Committee”.⁶³

ISSUE 52
(a) Should provision be made for the representation of Indigenous people on the CJCs Council?

(b) If so, what should the criteria be for such a representative?

6.31 In considering whether special provision needs to be made for Indigenous people and communities in relation to the activities of CJCs, the question arises as to whether there should be specific reference to the provision of services to Indigenous people in an objects clause. The answer to this question will depend on what is determined as being the best way of providing mediation services for Indigenous people, including issues of Indigenous control of the services.⁶⁴ The principles contained in the NSW Attorney General’s Aboriginal Justice Agreement,⁶⁵ for example, could be adapted for inclusion in an objects clause.

ISSUE 53
Should reference be made, by way of an objects clause in the CJC Act, to the provision of mediation services to Indigenous people and communities?

1. CJCs Professional Reference Group, Preliminary submission at 8; J Hallinan, Preliminary submission at 4-5.

2. See, for example, L Behrendt, Aboriginal dispute resolution: a step towards self-determination and community autonomy (Federation Press, Sydney, 1995) at 41-50. See also NSW Reform Commission, Sentencing: Aboriginal offenders (Report 96, 2000) at para 1.6-1.17; J Lock, The Aboriginal child placement principle (NSWLRC RR 7, 1997) at para 2.2-2.32.

3. Aboriginal Justice Advisory Council, Aboriginal Justice Agreement (2002).

4. Aboriginal Justice Advisory Council, Aboriginal Justice Agreement (2002).

5. L Behrendt, Aboriginal dispute resolution: a step towards self-determination and community autonomy (Federation Press, Sydney, 1995) at 51-72; H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 170.

6. See H Astor, “Mediation initiatives and the needs of Aboriginal women” paper delivered at Second International Mediation Conference: mediation and cultural diversity (Adelaide, South Australia, 18-20 January 1996) at 3-4.

7. See, eg, P R Grose, “Towards a better tomorrow: a perspective on dispute resolution in Aboriginal communities in Queensland” (1994) 5 Australian Dispute Resolution Journal 28 at 38; M Dodson, “Power and cultural difference in Native Title mediation” paper delivered at Second International Mediation Conference: mediation and cultural diversity (Adelaide, South Australia, 18-20 January 1996).

8. See, eg, P R Grose, “Towards a better tomorrow: a perspective on dispute resolution in Aboriginal communities in Queensland” (1994) 5 Australian Dispute Resolution Journal 28.

9. P R Grose, “Towards a better tomorrow: a perspective on dispute resolution in Aboriginal communities in Queensland” (1994) 5 Australian Dispute Resolution Journal 28 at 30.

10. See also, for example, M Sauvé, “Mediation: towards an Aboriginal conceptualisation” (1996) 3(80) Aboriginal Law Bulletin 10.

11. Grose at 31-32.

12. On the multi-party nature of Aboriginal dispute management, see M Sauvé, “Mediation: towards an Aboriginal conceptualisation” (1996) 3(80) Aboriginal Law Bulletin 10 at 10-11.

13. See M Sauvé, “Mediation: towards an Aboriginal conceptualisation” (1996) 3(80) Aboriginal Law Bulletin 10 at 10-11; L Behrendt, Aboriginal dispute resolution: a step towards self-determination and community autonomy (Federation Press, Sydney, 1995) at 63.

14. Sauvé at 11-12.

15. CJCs, Annual report 2001-2002 at 5.

16. Information supplied by D Sharp, Director, CJCs (25 August 2003).

17. See para 3.5 and para 3.10 above.

18. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 65.

19. “Pathways to Australian Indigenous Dispute Settlement Forum” (2002) No 20 Legal Aid News 16 at 16.

20. Information supplied by D Sharp, Director, CJCs (4 September 2003).

21. P R Grose, “Towards a better tomorrow: a perspective on dispute resolution in Aboriginal communities in Queensland” (1994) 5 Australian Dispute Resolution Journal 28 at 29. See also L Behrendt, Aboriginal dispute resolution: a step towards self-determination and community autonomy (Federation Press, Sydney, 1995) at 61-63.

22. See, eg, M Dodson, “Power and cultural difference in Native Title mediation” paper delivered at Second International Mediation Conference: mediation and cultural diversity (Adelaide, South Australia, 18-20 January 1996); Behrendt at 64-65.

23. NSW Department of Housing, Preliminary submission at 3.

24. Coalition of Aboriginal Legal Services, Preliminary submission at 2.

25. CJCs, Aboriginal and Torres Strait Islander Network, Minutes (March 2003). See Aboriginal Land Rights Act 1983 (NSW) s 4 and s 54.

26. CJCs, Charter of the Aboriginal and Torres Strait Islander Network.

27. CJCs, Charter of the Aboriginal and Torres Strait Islander Network.

28. CJCs, Annual report 2001-2002 at 9.

29. CJCs, Annual report 2001-2002 at 9.

30. “Pathways to Australian Indigenous Dispute Settlement Forum” (2002) No 20 Legal Aid News 16 at 16.

31. CJCs, Annual report 2001-2002 at 12.

32. L Behrendt, Aboriginal dispute resolution: a step towards self-determination and community autonomy (Federation Press, Sydney, 1995) at 6.

33. Behrendt at 74.

34. P R Grose, “Towards a better tomorrow: a perspective on dispute resolution in Aboriginal communities in Queensland” (1994) 5 Australian Dispute Resolution Journal 28 at 28-29.

35. See para 6.3-6.5 above.

36. K M Hazlehurst, “Resolving conflict: dispute settlement mechanisms for Aboriginal communities and neighbourhoods” (1988) 23 Australian Journal of Social Issues 309 at 312.

37. See para 6.8 above.

38. Information provided by C Starkis, former CJCs Aboriginal employment co-ordinator (5 September 2003).

39. NSW, Parliamentary Debates (Hansard) Legislative Council, 19 April 1994 at 1324.

40. Information provided by C Starkis, former CJCs Aboriginal employment co-ordinator (5 September 2003).

41. NSW Police, Preliminary submission at 1.

42. See para 5.29 above.

43. Aboriginal Land Rights Act 1983 (NSW) s 4(1). This definition is also adopted in exact terms or by reference in other statutes: Aboriginal Housing Act 1998 (NSW) s 4; Crimes (Forensic Procedures) Act 2000 (NSW) s 3(1); Fisheries Management Act 1994 (NSW) s 4(1); Law and Justice Foundation Act 2000 (NSW) Sch 1 cl 1.

44. See also para 3.20 and 3.64 above.

45. Law and Justice Foundation Act 2000 (NSW) Sch 1 cl 2.

46. National Parks and Wildlife Act 1974 (NSW) s 71AN.

47. National Parks and Wildlife Act 1974 (NSW) Sch 8 cl 1(2).

48. Nature Conservation Trust Act 2001 (NSW) s 18(1).

49. National Parks and Wildlife Act 1974 (NSW) s 58ZA.

50. National Parks and Wildlife Act 1974 (NSW) Sch 9 cl 1(2).

51. Water Management Act 2000 (NSW) s 13(1)(e).

52. Coastal Protection Act 1979 (NSW) s 9(2)(j).

53. Fisheries Management Act 1994 (NSW) s 228A(2)(f); Fisheries Management (General) Regulation 2002 (NSW) cl 344.

54. Geographical Names Act 1966 (NSW) s 3(4)(d).

55. Marine Parks Act 1997 (NSW) s 32(2)(d).

56. Mining Act 1992 (NSW) s 139(2).

57. Native Vegetation Conservation Act 1997 (NSW) s 51(4)(f), s 54(3)(e).

58. Western Lands Act 1901 (NSW) s 8B(2)(c).

59. Young Offenders Regulation 1997 (NSW) cl 5(b).

60. Education Act 1990 (NSW) Sch 1 cl 3(c).

61. Fisheries Management (General) Regulation 2002 (NSW) cl 318(3)(b).

62. Heritage Act 1977 (NSW) s 8(2)(b)(i).

63. National Parks and Wildlife Act 1974 (NSW) Sch 7 cl 1(2)(c) and (m).

64. See para 6.3-6.6 above.

65. See para 6.2 above.