Thomas Ponissi speaks with the President of the Australian Association for Restorative Justice about participatory democracy, generation-long projects, Will Smith and more.
The Victorian Association for Restorative Justice was founded in 2005, before restructuring and renaming itself as the Australian Association for Restorative Justice (AARJ) in 2019. As co-founder and President of the AARJ, David Moore engages in both hands-on training and advocacy for the organisation’s principles and practices.
Please note that this interview contains references to First Nations Peoples who are deceased.
How did you end up involved in restorative justice?
Basically by happenstance. I did a double Arts degree at Melbourne University, studied in Europe, returned to teach politics in Melbourne, then had the opportunity to go to Charles Sturt University in New South Wales as it was forming. We were setting up distance education courses, and I was in charge of Justice Studies. This was the year the Berlin Wall came down, and I was in the right place at the right time when the opportunity presented itself to trial what New Zealand had just legislated. New Zealand had introduced what Māori activists had demonstrated: rather than the colonial state imposing decisions on them, the state could give them a forum in which they could make decisions, and they would make better decisions. Now, on the face of it, this might seem a small administrative change — involving people more in child protection and youth justice decisions — but actually, it has the profound significance of taking participatory democracy right into the heart of systems that are the antithesis of participatory democracy. My interest, coming out of history and political science, was on the big implications of this new development. I was invited by local police and social workers to be involved in a project evaluating whether a process consistent with restorative justice principles would work. I was pretty confident it would — but then: how to do it? We had the general principles, and developed an explanation and guidance on the nuts and bolts: how to actually set up and run group conferences. And basically, I've been further developing the practical theory for the last 30 years. It was one of those special moments where the future presented itself.
How has your background in academia assisted you with working in this space?
I've always had an interest in practical application of theory. We wrote a manual for facilitators in 1994, at the request of the Courts Administration Authority in South Australia, which was the first jurisdiction to actually legislate restorative justice. As soon as we’d written that, it had applications well beyond its original scope: youth justice cases, diversion and sentencing support, requests from teachers about responding effectively to bullying. We were able to give a big impetus to the emerging restorative practices movement by providing practical guidance. Then we started being asked by commercial workplaces to help both management and the workforce. I had a conversation yesterday with a very senior member of Victoria Police. We agreed that you cannot change culture until you understand the actual interactions that people are having minute by minute, hour by hour, day by day interactions — particularly in formal processes — and whether these are providing good outcomes that you can replicate. Otherwise, you get this swing between so-called liberal solutions, where you change laws and hope the world will change, or radical ones, that stick for a while then fall apart because you haven’t changed the underlying system that generates outcomes.
So you see the future of restorative justice as requiring systemic change in order for it to be a sustainable option?
That's a fundamentally important question, and the answer is that it’s both cause and effect. I was teaching in the United States on September 11th 2001, and I stayed with friends for the ten days afterwards when planes were prevented from flying. By the end of that, I decided that was going to stop overseas teaching and focus on the answer to your question: ‘How do we implement this approach sufficiently widely to actually change the systems in which we’re implementing it?’ The history of the last 25 years has been marked by a lack of understanding of how to do this. Australian Story on the ABC recently illustrated this perfectly, when it looked at the Voices Of movement and how it has disrupted Australian politics. By engaging the community, at the tail end of the current form of representative democracy, the Voices Of movement is demonstrating the same principles as restorative processes: embed democratic decision making, not just in the formation of laws, but particularly in people’s mechanisms of interaction, and the delivery of services.
You raise a very interesting point about participatory democracy and the rise of challenges to the two-party system. Do you think that this particular moment is ripe for opportunity in terms of restorative justice and its broader implications for community engagement?
I don’t want to sound too millenarian.[1] But I've been in this movement for 30 years, and have thought about these issues very hard. An interesting question for me has been: “When the time is right, will a sudden shift occur?” And it’s happening now. You’re seeing law reform agencies all saying that restorative processes offer more than they originally thought. The approach was deliberately trivialised as, “We're going to force you to apologise” — when the point of restorative justice, fundamentally, is that it provides a mechanism for setting relations right.
You mentioned before that you’ve facilitated restorative justice in workplaces. Would it be correct to say that you see it as serving a role not just for criminal disputes, but also civil disputes outside the remit of the criminal justice system?
100%. When they receive complaints, entities often start with a performance discussion, then add a psychologist, or half-baked mediation to their suite of options. Very often, none of these can actually address the issues, because 80% of the time, a key issue is significantly the culture of the work unit. Everything is framed in terms of individual rights, which are a protection, but not a solution. There is often no effective mechanism to identify what's working and what isn’t.
I’d like to press you a little further on individual rights. Can we achieve systemic change — not just restorative justice, but any other number of things that progressives want — without challenging the culture of individualism? Especially when the dogma of neoliberalism and individual responsibility remains endemic across the political spectrum.
It’s a generational long caper. I'm a generation older than you. Professor Mark Considine, who supervised my master’s thesis, wrote an early critique anticipating what was likely to happen to the public service in this cultural climate, the corrosive effect on governance. This will pass, since there tend to be pendulum swings in history — but the key is that the mindset will only pass when we have an alternative skill set. This will require a systematic redesign of our arrangements for governance and decision making. In order to make decisions, you need to resolve disputes, but in order to resolve disputes, you need to transform conflict into cooperation. When people are empowered to make decisions at every point in this process, it has systemic effects. During the Black Lives Matter protests in 2020, I was fascinated to see an article in The New York Times about how community organisers in the state of Maryland seemed particularly adept. We know that the Maryland school system has used restorative practices for the last 25 years, from very early primary age, and primarily preventatively. They call the preventative work the Daily Rap, which consistently gives all students a voice. So, you wait however many years and see that this is panning out at a social level across a whole state. Outsiders can’t quite explain it, but it’s foundational; restorative justice has been embedded in schools, in a way that hasn't happened in other states to that degree. It's a well-conceived system of giving people a voice in a group, and understanding that when you're in a group there is something over and above a collection of individuals, which accelerates social learning and skills building.
Absolutely. I would like to read you a passage from a text published earlier this year by four American feminist activist-academics advocating for prison abolition. They write:
“Many of these small [restorative justice] networks fracture as a result of pressure from funders and others to expand, “scale up,” “streamline,” or “brand,” or to provide a service rather than organise, focus on policy work not base work, elevate a single charismatic leader/director instead of a collective, network with legislators not ordinary people. [...] Since paid employment has opened up for restorative justice practitioners and experts, many of these positions can now only be filled by someone with expensive certifications and credentials.” [2]
What is your perspective?
I was going to say that’s a very North American perspective, but Canada is different. Because the US political system is so corrupted, things are often posed as either/or — there’s institutional separation between theorists and practitioners, and also between community and state. But ultimately, we have to be working with both. That’s why I welcome the opportunity to work with defence and police. You have to speak to good people in those institutions who well understand that when force is used, this is often a failure, and understand that they need to be better linked up with public health mechanisms to work effectively. Some current policing practices can make situations less safe, so this will be a generation long exercise. In the 1990s, we trained police in Canberra and then the UK as facilitators in the Reintegrative Shaming Experiments — which is an unfortunate name, but provided a breakthrough in practice and thinking. Many of the police involved in the UK experiments have subsequently demonstrated how deferred prosecution can reduce the need police enforcement. A recent study found that a restorative public health approach was overwhelmingly successful, and only one of 20 police interventions actually required enforcement.
"Many long-lasting social movements have a long, slow genesis, with lots of discussion and experimentation - then there's an explosion."
- David Moore
That either/or binary is certainly increasing, and part I think of the broader rise in polarisation. At the same time, how would you respond, then, to criticism of your working with police — an institution held in low regard by many who are otherwise proponents of restorative justice?
Well, what's the alternative? We work in the Northern Territory, developing facilitation skills. Those communities don't have the indulgence of saying ‘defund the police’. They actually want more police, but they want a different style of policing, integrated with Aboriginal community-controlled health- and other services. Journalists don’t always have an opportunity to look into these issues in depth; there are relatively few forums where contemporary journalism can engage sufficiently beyond fairly simple explanations. Ultimately, what's required is a fundamental shift in how we understand the essence of good governance. These simple binaries of either a strong state or the people must be in control: neither of those is going to flow. We tried them in the twentieth century — can we move on please? It's more complex than that.
I’ve been asking interviewees about the Will Smith’s assault of Chris Rock at the Oscars, and the role that restorative processes could play. What is your perspective? How would the ARRJ approach this particular incident — given its many nuances: race, disability, gender, wealth — if you were asked to facilitate?
It's a good example. So, Will Smith’s an interesting guy, right? He grew up in part Philadelphia, and is a bit of a cult hero in his hometown. He’s spoken about his shame that when he was a child, he didn’t protect his mother when she was being bashed by his father. That doesn't excuse his behaviour, but it probably helps to explain it. And then, Chris Rock is from that era of stand-up comedy where mocking people is allegedly hilarious — but it’s not actually funny. Per your initial analysis, that incident raises about a dozen different factors. I doubt those two men will speak to each other unless there’s a formal reconciliation between them — but Will Smith's partner was also involved. And, in fact, the families of both the men would be upset about what happened. So, you’d have a meeting that engages those others, and raises broader issues. And you could potentially address these in that meeting, or run a separate meeting as part of an integrated intervention. Why it's actually such a good case study is that it invites a discussion of different elements of the restorative movement. In North America, there are faith-based movements emphasising individual reconciliation through forgiveness and redemption; the archetypal programs were initially encounters between one victim and one perpetrator. First Nations activists were involved in processes known as healing circles, where more people were involved in the reconciliation; this was a form of participatory democracy, whereby the group negotiates social order, rather than it being imposed by the colonial state. What got parachuted in were civil legal mechanisms developed for alternative dispute resolution, which was originally designed to make the court system more effective. At the same time, there are abolitionists, who believe that the whole damn system — that treats conflict as property and crime control as a source of profit — is corrupt and driving the school-to-prison pipeline. After all, the US still hasn’t resolved the socio-economic and- cultural impact of slavery, that system disproportionately affects African Americans; in Canada, it’s First Nations people winding up in the system. Another influence is the victims’ rights movement, which focuses on giving people affected by crime a better deal. But of course, even an incident like the one you raised on is way more complicated than one approach or theory. There's a background to it, there's history between those people. In any restorative justice format, we need to make sense of how we got here.
You point out that restorative justice is often framed in a very individualised context — but we know that there are many collective disputes and traumas that need to be resolved through systemic change. So what role does restorative justice play exactly?
Let’s look at Aboriginal deaths in custody as one example. Over the past 30 years, since the Royal Commission, there’ve been multiple reports focusing predominantly on the justice system, and so in some ways focusing on the wrong questions. If you look at the Northern Territory Royal Commission, which was a good report, they basically said that what’s necessary is to start effectively democratising decision-making, especially outside of the justice system. There’s a really powerful theoretical basis to this; a study in Western Canada showed that First Nations groups with higher degrees of control — over land, self-governance, culture, teaching, health, emergency services — have significantly lower suicide rates. This goes well beyond suicide rates, it’s about a shift from ‘I’m an individual with rights’, to ‘I’m also a person with relationships’. It’s about having the dignity of control and planning for future. We need mechanisms that giving communities greater control over their lives and circumstances. If you just focus on the justice system, more people wind up in it.
That brings to mind a slogan that was in some of the literature you shared with me prior to speaking, which is essentially that the best way to keep people out of prison is to keep people out of prison. The flow on effect of restorative justice, and other non-punitive approaches to criminal justice, on reduced recidivism speaks to its necessity.
We have to do it. But we can only do it if we coordinate the activity of services. The problem is that when governments provide simplistic solutions, these add to our problems. For example, the previous state government’s ministerial directive to make it easier to kick kids out of school actually fuelled a rise in crime rates. That was really concerning.
The necessity of coordination between services fits in well, I imagine, with your ethos of not taking an either/or approach, but negotiating with different stakeholders, including some who other members of your coalition may not be comfortable working with. It also fits very well in with the nature of restorative justice: listening and communicating and having tough conversations.
That's exactly right. You need a mechanism to challenge polarisation, because when people are worked up, you can exploit that. Let’s not get started on Sky News and the Murdoch press. You know, what initiated Cathy McGowan to start the Voices Of movement was that she went to have a meeting with local member Sophie Mirabella, and that meeting lasted 11 minutes, because Mirabella’s view seemed to be that people aren’t interested in politics, so we can maintain the existing stacked arrangements and keep duping people. Hopefully, with the wave of independents, we may now seeing the tail end of that contempt. We need to move beyond that flawed, simplistic understanding of human nature.
Well, at the risk of being overly sentimental, participatory democracy really is just so central to creating a better society.
In the fullness of time, with a bit of luck, representative democracy may be complemented by mechanisms such as citizens juries, so that on any big issue that are likely to be unhelpfully polarised, you use the method called sortition to get a jury of citizens together. France did something along these lines on environmental policy; Emmanuel Macron, whatever his foibles, realised after the Yellow Vests movement that he had tried — and failed — to force through change. A citizens jury subsequently developed sensible policy suggestions. Democracy is fundamentally important, but we're stuck with this idea of one party wins, one party loses, as opposed to getting a workable consensus. I was recently reading two books — The Storm Before the Calm, by George Friedman, and Gal Beckerman’s The Quiet Before — which both emphasise that many long-lasting social movements have a long, slow genesis, with lots of discussion and experimentation - then there's an explosion. I believe that what we’re seeing now is consolidating what the first generation of restorative practitioners have done, as the next wave is trying out other applications. So, I do think the dots are going to be joined fairly quickly. People like yourself, law students taking this interest into the profession, will be a key part of that, I'm sure.
This interview has been condensed for clarity.
References
[1] “A religious or political group believing in a millennium marking an era of radical change or the beginning of a utopian period” — Oxford English Dictionary (online at 21 July 2022) ‘millenarian’.
[2] Angela Y. Davis, Gina Dent, Erica R. Meiners and Beth E. Richie, Abolition. Feminism. Now. (Hamish Hamilton, 2022) 163-4.
Thomas Ponissi is a fourth year Law/Global Studies student, specialising in Human Rights. He works in the refugee settlement sector, as well as at a community legal centre for disadvantaged clients. Thomas’ favourite books are A Little Life by Hanya Yanagihara and Anna Karenina by Leo Tolstoy.