681. Some General Developments. Any examination of this aspect of the Commission’s Terms of Reference needs to take into account the background of continuing experiments with forms of ‘justice mechanisms’ other than the ordinary courts, and with procedural and other changes to the ordinary courts. The reasons for this have included the need to reduce the complexity and formality of present legal procedures, to encourage (e.g. through mediation) negotiated rather than adjudicated settlements, and thereby to reduce to some extent the increasing costs and delays of ordinary litigation. It is important to be aware of these developments for a number of reasons:
they may be a source of ideas or models which could be adapted by Aborigines for their use;
they may assist as precedents in justifying changes or modifications to the legal system sought by Aboriginal groups;
conversely, their record of success or failure may provide useful or cautionary lessons in the present context.
It is not possible in this chapter to give anything like a full account of the various justice models which have been suggested or tried, in Australia or elsewhere. Australian developments have included:
the use of counselling and other procedural reforms in the Family Courts;
the introduction, as a pilot scheme, of community-based family centres;
diversion of young offenders from juvenile or children’s courts to children’s aid panels, etc;
the growth of tribunals such as small claims or consumer claims tribunals;
the use of ‘community-based’ dispositional orders in sentencing offenders, as an alternative to imprisonment;
the use in New South Wales of senior solicitors to arbitrate minor civil claims (less than $10000) on referral from a Magistrate or District Court;
community justice centres in New South Wales.
682. Community Justice Centres (NSW). Perhaps the most interesting example for present purposes is the experiment with Community Justice Centres under the Community Justice Centres (Pilot Project) Act 1980 (NSW). Three such centres were established as part of a pilot project in 1980. Their functions were to mediate in ‘neighbourhood’ disputes brought to them by private parties, and to assist such parties in reaching an agreed settlement of their dispute. The Centres had no power to compel attendance, and it was specified that agreements reached through mediation sessions, though recorded in writing, were not legally enforceable. Mediators were chosen from members of the general public and given a limited degree of training. A careful review of the Pilot Project was conducted under the auspices of the Law Foundation of New South Wales, which reached broadly favourable conclusions. The resulting recommendation, that the Project be continued and extended, has been accepted. But the Law Foundation Report’s conclusions emphasise the rather limited character of the Project’s aims:
The CJCs adopted a ‘service’ model of informal dispute resolution which was appropriate for cases of this kind — informal, accessible, confidential, non-coercive, and chiefly concerned to meet the needs of individual parties. For such reasons the researchers concluded that the New South Wales centres were not in practice vulnerable to certain criticisms from time to time made of informal dispute resolution programmes in the USA; it could not reasonably be said, for example, that they represented a dangerous aggrandisement of State power or that they sought to provide a form of ‘second-class justice’ for disadvantaged people … The researchers saw much of the strength of the pilot scheme as lying in its being quite separate from and operating quite differently from legal institutions.
The Law Foundation Report points out the strong emphasis the Project placed upon the needs of ethnic minorities (i.e. migrants), but makes no mention of Aborigines as participants in disputes mediated by a Community Justice Centre. The Commission was informed by the Director of the Surry Hills Community Justice Centre (which, because of its location, is the one which is the most likely to have had contact with Aboriginal parties) that the Centre had had relatively little impact on Aboriginal disputes in the neighbourhood, although it had dealt with the occasional dispute between an Aboriginal and a non-Aboriginal person. The Director commented that, apart from the obvious need for Aboriginal mediators, some review of the Centres’ administrative arrangements would be desirable in dealing with inter-Aboriginal disputes. For example mediation sessions might be better conducted elsewhere than at a Centre (e.g. at the office of the Aboriginal Legal Service). With such modifications it is possible that the Centres could be of greater value to Aborigines in the settlement of disputes.