Delivering Justice in Indigenous Sentencing Courts: What This Means for Judicial Officers, Elders, Community Representatives, and Indigenous Court Workers

• Date: 01 October 2014
• Author: Elena Marchetti
• Published date: 01 October 2014
• DOI: http://doi.org/10.1111/lapo.12028

Delivering Justice in Indigenous Sentencing

Courts: What This Means for Judicial Officers,

Elders, Community Representatives, and

Indigenous Court Workers

ELENA MARCHETTI

Indigenous sentencing courts are now an established form of innovative justice

practice in most Australian jurisdictions. Whether such processes, which involve

the participation of local community elders or representatives in sentencing an

offender, provide a “better” form of justice is still up for debate. Recidivism

analyses have yet to find that these courts are more likely to reduce reoffending

than their mainstream counterparts. Some scholars argue that this is not the sole

purpose of the courts and that other measures of “success” should be utilised when

evaluating their performance. This article uses interviews with judicial officers,

elders, community representatives, and Indigenous and non-Indigenous court

workers to explore what the courts are seeking to achieve and how that translates

into a different form of doing justice.

INTRODUCTION

According to Rawls “laws and institutions no matter how efficient and

well-arranged must be reformed or abolished if they are unjust” (Rawls 1971,

3), but what does this mean for a sentencing process involving colonised

Others whose cultural and legal norms were forcibly superseded by the laws,

culture, and legal system of the colonial state? In general, it is understood

that legal justice requires due process and that without due process there can

be no just outcome (Lai 2010). In a criminal justice context, due process

requires “the accused be given the right of participation . . . the hearing be

This work was partly funded by a Griffith University New Researcher Grant and partly by an

Australian Research Council Discovery Projects Grant (DP0985987). The author would like to

acknowledge and thank all of the interview participants who generously gave up their time and

contributed their knowledge in support of the research. I was invited to present an earlier draft

of this article at a one-day University of Western Sydney seminar: “Whose Justice? Contested

Approaches to Crime and Justice” in October 2013. I am grateful to the participants of the

seminar and to the anonymous reviewers for their helpful comments and feedback.

Address correspondence to Elena Marchetti, School of Law, University of Wollongong,

Building 67, Room 231, Wollongong, NSW 2522, Australia. Telephone: +61 2 4221 4632;

Fax: +61 2 4221 3188; E-mail: elenam@uow.edu.au.

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LAW & POLICY, Vol. 36, No. 4, October 2014 ISSN 0265–8240

© 2014 The Author

Law & Policy © 2014 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12028

open to the public . . . [and that there be] respect and concern for the

accused” in order to circumvent “a failure of justice” (ibid., 256). Addition-

ally, as with all justice processes, decisions need to be made without bias,

according to a set of rules, with consistency, with the opportunity for review,

and without discrimination against particular subgroups of the population

(Neff 2004). When making sentencing decisions, the penalties imposed need

to be in proportion to the offence and the sentence should reflect the sen-

tencing principles of a particular jurisdiction (Frase 1997). But these elements

need to also be aligned with “a participant’s satisfaction with procedure” for

there to be an impact on a person’s eventual compliance with laws and

outcomes as well as an “increased legitimization of authorities” (Neff 2004,

150). In other words, the need for due process is important because it not only

legitimises the verdict, it also has intrinsic value: the liberal trial is not merely a

method of determining guilt or a means of bringing criminals to justice; it is also

a process of doing justice to accused persons, a political obligation owed by the

state to the citizens it seeks to censure and punish. (Lai 2010, 251)

For Indigenous1Australians (and indigenous people around the world), it

could be argued that justice can never be achieved without the recognition of

Indigenous sovereignty (Watson 1997). However, until that happens and

until the hegemonic Eurocentric justice system properly acknowledges the

authority of Indigenous self-determination, we are forced to consider how

existing laws and processes can better meet the needs of indigenous offenders

(and other indigenous court participants) who continue to be overrepre-

sented in criminal justice systems across settler societies in Australia, North

America, and New Zealand (Cunneen 2014).

Similar to the experiences of indigenous (and other marginalised) people in

colonised countries around the world, it is well documented that Indigenous

Australians are often overcharged, much less likely to receive a summons as

opposed to being detained, more likely to be sentenced to a period of impris-

onment, and much less likely to receive bail (Australian Government

Productivity Commission 2011; Allard 2010; Adjin-Tettey 2007). Recent

Australian Bureau of Statistics data indicate that Aboriginal and Torres

Strait Islander people make up 3 percent of the total Australian population

(Australian Bureau of Statistics 2013a). Despite comprising a relatively small

proportion of the overall Australian population, they make up 27 percent of

the prison population, and their rate of imprisonment is fifteen times higher

than that of the non-Indigenous population (Australian Bureau of Statistics

2013b). As a result of laws and policies being implemented in ways that are

either intentionally racist, discriminatory, or that fail to consider the harmful

effects of a particular decision or process for Indigenous people coming into

contact with the criminal justice system—systemic or institutional racism has

been recognised as a factor that impacts the overrepresentation of Indigenous

people in custody (Cunneen 2006; Blagg et al. 2005). And while socioeco-

342 LAW & POLICY October 2014

© 2014 The Author

Law & Policy © 2014 The University of Denver/Colorado Seminary