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.
Courtroom 7 : an evaluation of the Children's Koori Court of Victoria / Allan Borowski
This is the first evaluation of the court, which began operating in 2005. Its objectives cover: reductions in failure to appear in court, breaches of court orders and the rate and severity of reoffending; the development of a culturally sensitive juvenile justice system for Koori youth; and to increase positive Koori community participation in the court, accountability of the community for its young people and community awareness of social codes of conduct and standards. The research questions studied in the evaluation were: the extent to which the objectives had been realised; whether the court serves its intended target population; the match between design and implementation; how participants experience the court; and what improvements can be made. Overall, the study found that the court fostered a strong sense of ownership of juvenile justice on the part of the Koori community, along with an 'acceptable' recidivism rate of just under 60 per cent, very low failure-to-appear and court order breach rates and also found that Koori defendants who did reoffend, that their offences were generally less serious than the offences that brought them to the court in the first instance. The study concluded that, provided certain structural changes are made, the court process will strengthen the Indigenous community and contribute to a long term reduction in overrepresentation of Indigenous youth in the criminal justice system.
‘Payback’, Customary Law and Criminal Law in Colonised Australia☆
Abstract ‘Payback’ is an Australian Aboriginal English term (also known in Melanesia) commonly understood to refer to a vendetta. Satisfaction of a grievance, such as a death or wife-stealing, may be sought through ritual ceremony, gift-giving, corporal punishment and ordeal, or even killing. Such phenomena, often characterised as vendetta or feud, have been noted by non-Aboriginal observers during most of the period of European colonisation (from 1788). In spite of the presumption of sovereignty that recognises only one law, it is shown that the criminal law in Australia has conceded limits to its reach in dealing with payback. More recently we observe that judicial attitudes have tended to recognise the positive functions of certain forms of payback in resolving conflict and upset in communities. Far from being eradicated by colonisation, payback retains a rationality in Aboriginal communities in a country that is subject to white man's law.