Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model

Description

Since 1999, a number of Indigenous sentencing courts have been established in Australia that use Indigenous community representatives to talk to a defendant about their offending and to assist a judicial officer in sentencing. The courts are often portrayed as having emerged to reduce the over-representation of Indigenous people in the criminal justice system and to address key recommendations made by the Royal Commission into Aboriginal Deaths in Custody, in particular, those centred on reducing Indigenous incarceration, and on increasing the participation of Indigenous people in the justice system as court staff or advisors. They are also said to reflect partnership practices that were recommended in Justice Agreements made throughout Australia between state governments and Indigenous organisations. In this article, the authors argue that these courts have broader aims and objectives in that they seek to achieve a cultural and political transformation of the law, which is not as evident in other new justice practices such as restorative justice or therapeutic jurisprudence. There is a great deal of variation in the way the Indigenous sentencing courts have been established in each Australian State and Territory and in the practices they use. Despite the variations they show that the courts have common goals: to make court processes more culturally appropriate and to increase the involvement of Indigenous people (including the offender, support persons and the local community) in the court process. Although advocates of new justice practices associate Indigenous sentencing courts with restorative justice and therapeutic jurisprudence, the authors argue that while they have some elements in common, Indigenous courts have distinct aims and objectives. By analysing practices, protocols and other empirical materials, they show why Indigenous sentencing courts deserve a unique theoretical and jurisprudential model and why they are better viewed as being in a category of their own.

Copyright Information

The copyright for this resource to the The University of Sydney, the Sydney Law Review and/ or the authors. As stated on the website where this resource was accessed [http://sydney.edu.au/disclaimer, October 2016] The University of Sydney owns the copyright in the information provided on this site, unless stated otherwise. Material on this site is subject to copyright under Australian law and through international treaties, applicable law in other countries. Individuals may copy a reasonable portion of the material on this site under the fair dealing provisions of the Copyright Act 1968 provided it is used for research or study or for criticism or review. Educational institutions may reproduce limited amounts of material from this site under Part VB of the Copyright Act. Apart from these specified uses material from this site may not be reproduced for commercial purposes without prior written permission of the University of Sydney.