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With permission from UNSW Law Journal
In recent years there have been many attempts aimed at transforming the relationship between Indigenous people and the criminal justice system in Australia. Some of these attempts have been directed at policing relationships, including such measures as community and night patrols. Others have focused on prisons, including attempts at greater cultural accommodation, and even the building of Aboriginal prisons. The focus of this article, however, is on the relationship between Indigenous people and court processes, especially in regards to sentencing. In particular, the article explores innovative sentencing courts, practices and principles introduced across the Australian jurisdictions specifically aimed at Indigenous offenders. These include circuit courts in regional and remote centres where judicial officers seek the advice of community members when making sentencing determinations; Indigenous sentencing courts in urban cities and regional towns where Elders or community representatives are involved in the sentencing court process; and now the cross-border justice scheme where judicial officers and legal practitioners from the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands in the Northern Territory, South Australia and Western Australia are engaged in ‘processing’ offenders from ‘cross-border’ jurisdictions. These processes are often touted as providing a more culturally appropriate and inclusive courtroom experience for offenders. However, there has been little discussion about what that means in practice for the non- Indigenous legal players. The article begins with a brief discussion of the context in which these processes have arisen, followed by an overview of these processes to establish what has been done. It then looks at the extent to which formal, publicly available guidance is available to judicial and legal officers to assist them in being more culturally sensitive. We then discuss these findings in the context of principles underpinning problem-solving courts and therapeutic jurisprudence, and within a postcolonial framework, to help determine the emotive or relational characteristics and practices that non-Indigenous legal participants might be required to adopt in Indigenous-focused sentencing practices. We do not examine the stated and unstated assumptions underpinning such processes, or the informal training and discussion judicial officers and lawyers may receive, which are important topics, but beyond the scope of this article.