Indigenous Issues and Indigenous Sentencing Courts

There is increasing recognition in courts and in other parts of the justice system that legal processes have failed to take into account the cultural background and rehabilitation needs of Indigenous peoples. Indeed, arguably legal processes have compounded social and behavioural problems confronting Indigenous people in the justice system and promoted distrust as to its fairness and capacity to address their problems.

One response of the court system has been to educate members of the judiciary, legal profession and justice system personnel as to Indigenous cultural issues so that they are more sensitive in interacting with Indigenous people whether in court or elsewhere and can use processes that are appropriate in the circumstances. For example, the Australasian Institute of Judicial Administration commissioned the development of a special model benchbook for the judiciary dealing with these very issues.

The legal system has investigated alternative responses to addressing Indigenous issues in the justice system for some timeĀ - albeit not on a systematic basis until recently. For example, Magistrate Terry Syddall invited Indigenous Elders to sit with him on the bench of the Magistrates Court at Broome, Western Australia in the 1970s. Subsequently special courts, called 'Aboriginal Community Courts' were set up in Western Australian Indigenous communities.

More recently Australian Magistrates Courts have engaged with Indigenous communities in the collaborative design of special Indigenous sentencing courts. Common features in these courts include: the court convening in a less formal atmosphere around a table in a room rather than in a formal court setting; a departure from court formalities including standing and bowing; a recognition by the judicial officer of the traditional owners and respect for their culture; the promotion of voice, validation and respect of all involved; active listening; promotion of decision making where all are involved in the process; and the promotion of restorative outcomes.

Some commentators have argued that Indigenous sentencing courts do not fall within the ambit of therapeutic jurisprudence and should not be regarded as problem-solving courts. However, given that therapeutic jurisprudence says that court processes can be designed to promote wellbeing, Indigenous sentencing courts fall within that concept. Their processes promote concepts valued by therapeutic jurisprudence: voice, validation, respect and self-determination. They also demonstrate respect for Indigenous culture and the Elders who are its authority figures. Their processes, collaborative in nature, promote the resolution of underlying problems that have brought individual offenders to court.