WEBVTT - Why judges should be ‘therapists’ 0:00:04.000 --> 0:00:06.880 From the Australian. Here's what's on the front. I'm Claire Harvey. 0:00:06.960 --> 0:00:14.720 It's Thursday, October tenth. The Powerful Education Union wants members 0:00:14.760 --> 0:00:19.320 to boycott teaching reforms, including phonics and explicit instruction on 0:00:19.400 --> 0:00:22.760 topics like maths and reading. That's because it says the 0:00:22.760 --> 0:00:26.320 federal government's sixteen billion dollar funding offer to the States 0:00:26.520 --> 0:00:33.040 isn't enough. Former Labor Senator Fatima Payman, who left the 0:00:33.080 --> 0:00:36.839 party after objecting to its stance on Gaza, has launched 0:00:36.880 --> 0:00:41.520 her own party, Australia's Voice. It has no policies yet, 0:00:41.800 --> 0:00:44.879 but some Indigenous leaders are objecting to her use of 0:00:44.920 --> 0:00:48.240 the word voice as they mark the anniversary of the 0:00:48.320 --> 0:00:56.080 Voice to Parliament referendum defeat. Judges should be trauma informed 0:00:56.200 --> 0:01:00.040 when dealing with Indigenous and African offenders and taken to 0:00:59.880 --> 0:01:04.679 account the effects of colonialism, slavery and racism. That's just 0:01:04.800 --> 0:01:07.880 part of a new guidebook to help judges become more 0:01:07.959 --> 0:01:12.800 like therapists. It's been distributed to judicial officers today. What 0:01:13.040 --> 0:01:27.479 therapeutic jurisprudence is all about. Congratulations, you've been appointed a judge. Now, 0:01:27.640 --> 0:01:29.520 which kind of judge are you going to be? 0:01:29.920 --> 0:01:33.840 The hanging judge, your persistent dedication to a life of 0:01:33.920 --> 0:01:38.680 chrime is an abomination before God and Man, and therefore 0:01:38.720 --> 0:01:41.160 sentence you to hang by the neck until you're dead. 0:01:41.720 --> 0:01:43.840 And may the Lord have mercy on your soul. 0:01:44.440 --> 0:01:46.360 The bring your toothbrush, judge. 0:01:46.640 --> 0:01:50.720 The word remorse a deep regret coming from a sense 0:01:50.760 --> 0:01:52.680 of guilt for past wrongs. 0:01:53.360 --> 0:01:56.880 That's not you, the judge, Judy, just a second. 0:01:57.200 --> 0:02:00.120 I ask questions, You answer the questions. 0:02:00.240 --> 0:02:03.880 Do you understand that amar Australian judges have a new option, 0:02:04.240 --> 0:02:11.800 the therapy judge Therapeutic Jurisprudence or TJ. According to a 0:02:11.840 --> 0:02:14.760 new guide distributed to judges published by the New South 0:02:14.760 --> 0:02:18.120 Wales Judicial Commission. This is what that means. 0:02:18.840 --> 0:02:24.040 TJ emphasizes processes that encourage self determination for offenders to 0:02:24.160 --> 0:02:29.079 avoid increasing resistance and potential resentment of the judicial process. 0:02:29.840 --> 0:02:33.080 Judicial officers are expected to have a positive impact on 0:02:33.160 --> 0:02:36.880 the people appearing before them and their communities, with the 0:02:36.919 --> 0:02:39.400 court as a possible facilitator of healing. 0:02:40.560 --> 0:02:42.639 So it was written by a researcher. She's a lawyer 0:02:42.639 --> 0:02:45.880 and a psychologist. Her name is Ronda Waterworth and it 0:02:46.080 --> 0:02:48.799 was backed by the New South Wales Judicial watchdog, the 0:02:48.880 --> 0:02:52.359 Judicial Commission, and further endorsed by the Australasian Institute of 0:02:52.440 --> 0:02:57.200 Judicial Administration, which is the peak judges body in Australia. 0:02:57.360 --> 0:03:00.800 Ellie Dudley is the Australian's Legal affairs correspond and she's 0:03:00.880 --> 0:03:06.680 breaking this story today. The guide explicitly states its techniques 0:03:06.800 --> 0:03:10.040 are not designed for use in more serious criminal matters 0:03:10.400 --> 0:03:14.520 and are not designed to excuse offender behavior nor argue 0:03:14.560 --> 0:03:16.040 for judicial leniency. 0:03:16.600 --> 0:03:23.120 Therapeutic jurisprudence and solution focused judging did not promote leniency. Indeed, 0:03:23.200 --> 0:03:26.600 offenders being held to account and receiving a just outcome, 0:03:27.080 --> 0:03:31.880 including imprisonment when warranted, is therapeutic in itself because it 0:03:32.000 --> 0:03:34.800 tells offenders that actions have consequences. 0:03:35.440 --> 0:03:39.240 In fact, the Guide suggests sending someone to jail can 0:03:39.480 --> 0:03:40.520 actually be useful. 0:03:41.040 --> 0:03:44.400 A sentence for incarceration can be used to stabilize a 0:03:44.440 --> 0:03:47.760 person's life, their mental state, to give a period of 0:03:47.800 --> 0:03:51.520 space and time to reorganize their entourage, and to give 0:03:51.560 --> 0:03:55.120 the defendant time to obtain support in a stable environment. 0:03:56.040 --> 0:03:58.200 One of the newer ideas coming through the law is 0:03:58.240 --> 0:04:02.160 that judges are themselves subject to wars. What's called vicarious trauma. 0:04:02.600 --> 0:04:05.800 That is distress and upset caused by being exposed to 0:04:05.840 --> 0:04:10.080 the details of offending and suffering. That, as well as 0:04:10.120 --> 0:04:13.240 the obvious stress of such big jobs, can lead to 0:04:13.320 --> 0:04:17.240 shortness of temper. Judges are, of course human, but sadly 0:04:17.240 --> 0:04:20.599 Australian courts are not televised, so we rarely get to 0:04:20.640 --> 0:04:23.839 share with you all the little moments of snappy, cranky 0:04:23.920 --> 0:04:28.040 judges we see from the press benchers. There are some exceptions, 0:04:28.279 --> 0:04:32.240 like this twenty twenty SmackDown by Victorian judge Elizabeth Gainer. 0:04:32.920 --> 0:04:35.720 Let me tell you, gentlemen, what this court has seen 0:04:36.200 --> 0:04:39.720 time after time with young men like you. 0:04:39.720 --> 0:04:41.000 You get out of jail. 0:04:42.279 --> 0:04:45.480 And you're in the big wide world. You've never had 0:04:45.520 --> 0:04:49.520 a job, never had a stable relationship, no relationships with 0:04:49.560 --> 0:04:53.279 the children that you have. You'll end up drug rattled, 0:04:53.400 --> 0:04:54.599 lonely old men. 0:04:55.480 --> 0:04:59.560 American courts, however, are a cornucopia of judges losing it 0:05:00.200 --> 0:05:03.520 on TV. I agree with the family. I hope you 0:05:03.640 --> 0:05:04.920 die in prison as well. 0:05:05.960 --> 0:05:08.560 Know if this was adapt to Patty State, you begin 0:05:08.680 --> 0:05:09.120 to chair. 0:05:09.600 --> 0:05:12.120 This court is so sick and tired of seeing adult 0:05:12.680 --> 0:05:18.360 room and abused children. There's a big rebalancing happening across 0:05:18.360 --> 0:05:22.160 the law, isn't there in the way that judges are considered. 0:05:22.360 --> 0:05:25.320 Now every few months I read a report about a 0:05:25.360 --> 0:05:29.080 senior judge talking to other judges about how to manage 0:05:29.080 --> 0:05:32.200 the workload, to manage the stress, and acknowledgment that it's 0:05:32.240 --> 0:05:33.480 pretty tough work at times. 0:05:33.800 --> 0:05:36.680 The New South Wales Judicial Commission released a report recently 0:05:36.960 --> 0:05:39.599 showing that an overwhelming amount of judges need to be 0:05:39.600 --> 0:05:42.640 tested for PTSD because the work that they're dealing with 0:05:42.680 --> 0:05:46.479 every single day is so incredibly traumatic. And what we 0:05:46.520 --> 0:05:49.039 see all through this report is an acknowledgment that the 0:05:49.080 --> 0:05:52.400 things that go on in court are incredibly traumatic, and 0:05:52.440 --> 0:05:55.400 also the fact that offenders all victims as well, bring 0:05:55.800 --> 0:06:00.760 really complex backgrounds and perhaps intergenerational trauma of vicarious trauma 0:06:00.839 --> 0:06:03.120 or whatever it is to court and they need to 0:06:03.120 --> 0:06:04.320 be treated in certain ways. 0:06:04.960 --> 0:06:07.440 That's the very serious and earnest part of this report. 0:06:07.640 --> 0:06:08.920 It is also pretty funny. 0:06:08.960 --> 0:06:11.240 There are parts of it that seem to be a 0:06:11.240 --> 0:06:12.440 little bit peculiar. 0:06:12.680 --> 0:06:14.360 Tell me about the butterfly technique. 0:06:14.440 --> 0:06:16.640 So the butterfly technique is something that is included in 0:06:16.640 --> 0:06:18.960 the report with graphics just in case you don't understand 0:06:18.960 --> 0:06:22.080 it fully where an offender, perhaps if they're experiencing stress 0:06:22.120 --> 0:06:24.800 at the time, crosses their arms across their chest and 0:06:24.880 --> 0:06:28.040 pats on their shoulders. There's also parts of the report 0:06:28.080 --> 0:06:31.320 that talk about the wellbeing of judges, so things like 0:06:31.560 --> 0:06:35.360 going for long walks, exercising more, having special herbal teas, 0:06:35.440 --> 0:06:37.720 that sort of thing in order to calm themselves down 0:06:37.880 --> 0:06:40.840 or to help resolve any vicarious trauma that they may 0:06:40.880 --> 0:06:43.760 experience based off of their experience in the courtroom. 0:06:43.839 --> 0:06:46.200 Yeah, there's a suggestion that judges might like an alkaline 0:06:46.279 --> 0:06:48.680 drink such as apple side of vinegar we're mixed with 0:06:48.720 --> 0:06:52.120 water to make themselves feel better, essential oils to help 0:06:52.160 --> 0:06:54.760 with alertness, calming music in the waiting room, and having 0:06:54.800 --> 0:06:57.880 a fiddle toy available for those speaking. This is the 0:06:57.920 --> 0:07:01.920 point where this tips over into being ridiculous, isn't it. 0:07:02.000 --> 0:07:05.440 I couldn't possibly say, but what I will say is 0:07:05.480 --> 0:07:08.720 that I have not yet seen any judges implement these 0:07:08.760 --> 0:07:11.480 sort of techniques in court, you know, from your Justice 0:07:11.480 --> 0:07:14.400 Michael Lees to your Chief Justice Stephen Gegler, and it 0:07:14.400 --> 0:07:16.520 would be very interesting if they did. In the middle 0:07:16.520 --> 0:07:21.040 of a chorum. It's bringing these therapeutic techniques into the courtroom, 0:07:21.080 --> 0:07:23.800 which does seem to be an incredibly twenty twenty four 0:07:23.840 --> 0:07:26.559 attitude and not something we would have seen a decade ago. 0:07:27.040 --> 0:07:30.520 Indigenous Australians are over represented in the justice system and 0:07:30.600 --> 0:07:33.680 in prisons, of course, and every judge in Australia who 0:07:33.720 --> 0:07:37.320 handles criminal matters is trained in dealing with Indigenous people 0:07:37.360 --> 0:07:42.400 in their particular sensitivities. The report suggests, though, that this 0:07:42.520 --> 0:07:45.760 is not just about acknowledging that an offender before the 0:07:45.800 --> 0:07:49.400 court might have had a difficult childhood, might have substance 0:07:49.440 --> 0:07:53.360 abuse problems, might be the victim of violence themselves, but 0:07:53.400 --> 0:07:56.440 it's also going back to what their family and in 0:07:56.480 --> 0:07:58.120 fact their entire culture might have. 0:07:58.080 --> 0:08:02.800 Experienced, particularly when it comes to Aboriginal defendants. There's a 0:08:02.960 --> 0:08:06.040 massive chunk of the report dedicated to the Stolen Generation 0:08:06.360 --> 0:08:09.560 when the impact that could have on Indigenous defendants. I 0:08:09.720 --> 0:08:12.400 also talks about settling colonialism and the impact that could 0:08:12.400 --> 0:08:15.680 have Indigenous defendants and the way that has been passed 0:08:15.720 --> 0:08:19.680 down from generation to generation amongst Aboriginal communities. 0:08:19.880 --> 0:08:23.320 Coming up, Why Islam is singled out as a helpful 0:08:23.440 --> 0:08:28.960 tool for judges. Ellie Dudley's coverage of legal affairs is unrivaled. 0:08:29.120 --> 0:08:31.360 If you're a judge or a lawyer, you should be 0:08:31.400 --> 0:08:34.840 subscribing to The Australian for her exclusives and all our 0:08:34.880 --> 0:08:37.960 analysis and commentary on matters of the law. Check us 0:08:37.960 --> 0:08:51.160 out at the Australian dot com dot au. When sentencing 0:08:51.280 --> 0:08:54.200 Muslim offenders, the guide says judges should be mindful of 0:08:54.240 --> 0:08:58.440 intergenerational trauma experienced by the family members of refugees who 0:08:58.520 --> 0:09:03.280 fled persecution experienced torture. But the report says there are 0:09:03.400 --> 0:09:04.679 upsides too. 0:09:05.040 --> 0:09:09.360 Muslim culture provides several elements that can strongly enhance resiliency 0:09:09.480 --> 0:09:14.040 in young offenders, offering a framework that promotes psychological well being, 0:09:14.280 --> 0:09:16.440 moral development and social support. 0:09:17.120 --> 0:09:20.920 There's a broad reference to Asian defendants. What does it 0:09:20.920 --> 0:09:21.560 say about them? 0:09:21.800 --> 0:09:24.679 It talks about Asian shame, So this idea that Asian 0:09:24.800 --> 0:09:28.920 defendants could will heavily fear embarrassment and that could impact 0:09:29.000 --> 0:09:31.360 the way that they appear in court. It says that 0:09:31.400 --> 0:09:33.800 this may make it difficult for an offender to participate 0:09:33.880 --> 0:09:37.800 fully because they could become emotionally overwhelmed due to this embarrassment. 0:09:38.240 --> 0:09:41.880 In terms of African defendants, Elie there's of course an 0:09:41.880 --> 0:09:44.920 acknowledgment that Africa is a pretty big place and there 0:09:44.920 --> 0:09:47.640 are a huge number of different, very different cultures from 0:09:47.640 --> 0:09:50.960 that continent, some of whom have made their way to 0:09:51.000 --> 0:09:55.840 Australia in the form of local communities. Why should judges, 0:09:55.840 --> 0:10:00.640 according to this report, have a particular sensitivity around Africa defendants. 0:10:00.880 --> 0:10:03.200 It goes back to that thing that we're talking about 0:10:03.240 --> 0:10:07.080 intergenerational trauma. So it makes reference to the slave trade 0:10:07.120 --> 0:10:08.840 when the impact that the slave trade could have on 0:10:08.880 --> 0:10:14.080 African defendants, it talks about that being a massive potential sensitivity, 0:10:14.360 --> 0:10:17.760 and similarly, the ongoing impacts of colonization could have an 0:10:17.800 --> 0:10:20.880 impact on African defendants. But at the same time, when 0:10:20.880 --> 0:10:23.280 they've got a sensitivity, they also have a strength, so 0:10:23.320 --> 0:10:27.840 they say that strong family bonds within African communities could 0:10:27.880 --> 0:10:31.080 act as a potential strength for an African defendant. 0:10:31.480 --> 0:10:33.720 You're in court rooms with judges all the time, it's 0:10:33.720 --> 0:10:36.960 easy to make jokes about the kind of woke instruction 0:10:37.080 --> 0:10:39.760 that they're getting from the Juditial Commission, for example, in 0:10:39.800 --> 0:10:42.840 this instance, it's your sense that by and large they 0:10:42.880 --> 0:10:47.040 are sensible, sober decision makers, or do you see judges 0:10:47.320 --> 0:10:49.680 straying away from black letter law. 0:10:50.200 --> 0:10:52.760 I think it's divided. So I think that while you 0:10:53.160 --> 0:10:56.600 would have some judges who are straying into judicial activism 0:10:56.960 --> 0:11:00.680 and more interested in quite progressive of the law, I 0:11:00.720 --> 0:11:02.559 think that you have a very strong basi of a 0:11:02.679 --> 0:11:06.560 judiciary that is very keen on not straying and ultimately 0:11:06.600 --> 0:11:09.400 achieving justice and achieving that in a very straight and 0:11:09.480 --> 0:11:10.040 narrow way. 0:11:13.480 --> 0:11:19.920 Ellie Dudley is The Australian's Legal affairs correspondent. Anthony Albanezi 0:11:20.000 --> 0:11:23.000 will meet Chinese Premier Lie Chung at the Asian Summit 0:11:23.080 --> 0:11:26.200 in Vientian Today. The PM says he'll be working on 0:11:26.320 --> 0:11:31.120 stabilizing relations with China amid boiling tensions over the South 0:11:31.240 --> 0:11:34.440 China Sea. You can read all a live reporting from 0:11:34.440 --> 0:11:37.800 Asian Today at the Australian dot com dot a U