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 time - 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.

Resources

Community Court, Darwin, Guidelines (2005)
New South Wales Circle Sentencing (Crime Prevention Division, NSW Dept of Attorney General)
Queensland Murri Court
South Australia Aboriginal Court Days (Nunga Court)
Victoria: Koori Court

Victoria: Children's Court Koori Court
Western Australia: Aboriginal Community Court

Aquilina H, Sweeting J, Liedel H, Hovane V, Williams V and Somerville C, Evaluation of the Aboriginal Sentencing Court of Kalgoorlie Final Report (Shelby Consulting, 2009), http://www.courts.dotag.wa.gov.au/_files/Kalgoolie_Sentencing_Court_Report.pdf.

Auty K, Briggs D, Thomson K, Gibson M and Porter G, 'The Koori Court: A Positive Experience' (2005) 79 (5) Law Institute Journal 41.

Auty K, 'We Teach All Hearts to Break But Can We Mend Them' Therapeutic Jurisprudence and Aboriginal Sentencing Courts' (2006) 1 eLaw Journal (special series) 101, https://elaw.murdoch.edu.au/archives/special_series.html.

Bartels L, Diversion Programs for Indigenous Women (Australian Institute of Criminology, 2010), http://www.aic.gov.au/en/publications/current%20series/rip/1-10/13.aspx.

Dick D, 'Circle Sentencing of Aboriginal Offenders' Paper presented to the 'Innovation – Promising Practices for Victims and Witnesses in the Criminal Justice System' seminar, Canberra, 23 October 2003, http://www.victimsupport.act.gov.au/res/File/Doug%20Dick.pdf.

Daly K and Marchetti E, Innovative Justice Processes: Restorative Justice, Indigenous Justice, and Therapeutic Jurisprudence in Marinella Marmo, Willem de Lint, and Darren Palmer (eds), Crime and Justice: A Guide to Criminology (Sydney: Lawbook Company, 4th ed, 2012), http://www.griffith.edu.au/__data/assets/pdf_file/0005/293585/Chapter-21-updated-6-April-FINAL-with-cover.pdf

Fitzgerald J, 'Does Circle Sentencing Reduce Aboriginal Offending?'  Crime and Justice Bulletin no 115 (NSW Bureau of Crime Statistics and Research, 2008), http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB115.pdf/$file/CJB115.pdf.

Harris M, 'From Australian Courts and Aboriginal Courts in Australia ' Bridging the Gap' (2004) 16 Current Issues in Criminal Justice 1.

Harris M, 'The Koori Court and the Promise of Therapeutic Jurisprudence' (2006) 1 eLaw Journal (special series) 129, https://elaw.murdoch.edu.au/archives/issues/special/The_Koori_Court.doc

Heath S, 'Innovations in Western Australian Magistrates Courts' Paper delivered to the 2005 Colloquium of the Judicial Conference of Australia, http://www.jca.asn.au/content/attachments/2005-Heath_Paper.pdf.

Hennessy A, 'Indigenous Sentencing Practices in Australia' Paper presented to the 'Justice for All--Victims, Defendants, Prisoners and Community' conference, Brisbane, July 2005, http://www.isrcl.org/Papers/2006/Hennessy.pdf

Hennessy A, 'Rights of Indigenous Australians - Queensland Murri Court' Paper presented to the 'Rule of Law' conference, Brisbane, 31 August 2007, http://www.lawcouncil.asn.au/fms/speeches/Rule%20of%20Law/Session%205%20Annette%20Hennessy.pdf

Jeffries S and Bond C, ‘Does a therapeutic court context matter?: The likelihood of imprisonment for Indigenous and non-Indigenous offenders sentenced in problem-solving courts’ (2013) 41(1) International Journal of Law, Crime and Justice 100.

Johnson S and Sarra S, ‘International Indigenous Therapeutic Jurisprudence +: Rekindling ancient knowledge’ in International Indigenous Development Research Conference 2014 Proceedings 25-28 November 2014 University of Auckland, http://www.maramatanga.ac.nz/sites/default/files/IIDRC%202014%20Proceedings.pdf#page=68

King MS, 'Applying Therapeutic Jurisprudence in Regional Areas: The Western Australian Experience' (2003) 10(2) eLaw Journal, http://www.murdoch.edu.au/elaw/issues/v10n2/king102nf.html,

King MS, 'Innovation in Court Practice: Using Therapeutic Jurisprudence in a Multi-Jurisdictional Regional Magistrates Court' (2004) 7(1) Contemporary Issues in Law 86.

King MS, 'Judging, Judicial Values and Judicial Conduct in Problem-Solving Courts, Indigenous Sentencing Courts and Mainstream Courts' (2010) 19 Journal of Judicial Administration 133.

King MS and Auty K, 'Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction' (2005) 30 Alternative Law Journal 69.

King MS and Guthrie R, 'Therapeutic Jurisprudence, Human Rights and the Northern Territory Emergency Response' (2008) 89 Precedent 39.

King MS and Wilson S, 'Country Magistrates Resolution on Therapeutic Jurisprudence.' (2005) 32(2) Brief 23.

Kwaymullina A, 'Country and Healing: An Indigenous Perspective on Therapeutic Jurisprudence' in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 1.

Marchetti E and Daly K, 'Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model' (2007) 29 Sydney Law Review 415.

Marchetti E and Daly K, 'Indigenous Courts and Justice Practices in Australia' (2004) 277 Trends and Issues 4.

Payne S, 'Darwin Community Court Trial' Paper presented to the 'Youth Justice: A Crime Prevention Forum' conference, Darwin, 4-6 May 2005.

Potas, I, Smart J, Brignell G, Thomas B and Lawrie R, Circle Sentencing in New South Wales: A Review and Evaluation (Judicial Commission of NSW, 2003), http://www.judcom.nsw.gov.au/publications/research-monographs-1/monograph22/mono22.html

Sharma N, ‘Mirror, mirror on the wall, is there no r(e)ality in neutrality after all? Re-thinking ADR practices for indigenous Australians’ (2014) 25(4) Australasian Dispute Resolution Journal 231.

Temby D, 'Yandeyarra Aboriginal Community Court Project' (2006) 1 eLaw Journal (special series) 141, https://elaw.murdoch.edu.au/archives/issues/special/Yandeyarrat.doc

Toki V, 'Will Therapeutic Jurisprudence Provide a Path Forward for Maori?' (2005) 13 Waikato Law Review 169.

Toki V, ‘Are parole boards working? Or is it time for an (indigenous) re entry court?’ (2011) 39(4) International Journal of Law, Crime and Justice 230.

Tomaino J, Aboriginal (Nunga) Courts (OSCAR Information Bulletin 39 2004), http://www.ocsar.sa.gov.au/docs/information_bulletins/IB39.pdf