Non-Adversarial Justice: The Changing Role of Courtroom Participants in an Indigenous Sentencing Court pages-115-125
This paper forms part of a wider sociolinguistic study of cultural and language disadvantage for Indigenous offenders in the criminal justice system. It examines the changing role of courtroom participants in an Indigenous sentencing court such as the Koori Court of Victoria, and how this may lead to a better quality of justice for this disadvantaged cultural group. The problem under review is the high percentage of Indigenous offenders who continue to come in contact with the law. The key aim of the research is to determine if issues of miscommunication identified by academics over the past three decades continue to be reflected in the court process, or whether an awareness of cultural and language difference by participants at the Koori Court hearing leads to a more restorative and therapeutic outcome for Indigenous offenders. Taking an interdisciplinary approach, the study investigates the role of participants and the communicative process in a conventional court and compares this with the non-adversarial Koori Court. There are now seven adult and two children’s Koori Courts in Victoria, established under the jurisdiction of the Magistrates’ Court of Victoria, and one County Koori Court, Australia’s only Indigenous court in a higher jurisdiction for more serious cases. This paper will illustrate how new forms of court practice lead to improved interaction between courtroom professionals and other key participants such as the offender and Indigenous Elders, in order to best achieve a positive outcome.
Indigenous sentencing courts: towards a theoretical and jurisprudential model
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, we 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 we 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, we argue that while they have some elements in common, Indigenous courts have distinct aims and objectives. By analysing practices, protocols and other empirical materials, we 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.
Dimensions of Restorative Justice
Restorative justice proponents tend to focus their attention on criminal justice initiatives in a small number of developed countries, but restorative processes (which encourage citizens to negotiate among themselves, rather than rely on professionals to adjudicate), and restorative values (which emphasize the importance of repairing and preventing harm), can be found across a wide range of regulatory fields. Teachers, social workers, corporate regulators, civil mediators, members of truth commissions, diplomats, and peacekeepers all—at least some of the time—practice a variety of restorative justice. Consideration of these often-neglected examples can help refine current restorative justice theory and practice, which in turn has insights to offer practitioners and researchers in these fields.