Anthony, Thalia --- "The Limits of Reconciliation in Criminal Sentencing" [2016] UTSLRS 28; (2016) The Limits of Settler Colonial Reconciliation (ed.) Sarah Maddison, Tom Clark and Ravi de Costa 249

Last Updated: 10 April 2017

THE LIMITS OF RECONCILIATION IN CRIMINAL SENTENCING

THALIA ANTHONY^[1]

ABSTRACT

Indigenous people in Australia are vastly over-represented in police custody and prisons. This paper argues that there is a judicial responsibility to take notice of systemic and prejudicial post-colonial circumstances affecting Indigenous people to reduce imprisonment. This may represent a step on the path to reconciliation in the legal system. By eschewing this reconciliatory gesture, Australian courts are complicit in the over-representation of Indigenous people in prisons. By contrast, Canadian judiciaries and legislatures have taken notice of the systemic disadvantage imposed by the legal system and broader colonial society on First Nations people and have sought to promote non-prison sentences for Aboriginal people. But is it enough for Australian courts to adopt the Canadian approach? This chapter draws on the ideas of Taiaiake Alfred (2009) that reconciliation absolves and entrenches colonial injustice by maintaining the dominance of postcolonial jurisdictions, processes and criminogenic assumptions. Resurgence, restitution and regeneration, concepts that Alfred introduces as counterpoints to reconciliation, are essential for breaking down the postcolonial structures that subordinate Indigenous people. In the legal system, measures to privilege Indigenous perspectives and knowledges through Indigenous sentencing courts and Indigenous community pre-sentence reports challenge the whiteness of legal discourse and process. However, they are not a substitute for the resurgence of Indigenous governance and ongoing jurisdictional claims that push the limits of reconciliatory gestures in criminal sentencing.

INTRODUCTION: FROM RECONCILIATION TO RESURGENCE

If one were to look for reconciliation in criminal sentencing courts, they would point to judicial attempts to recognise Indigenous people as having different backgrounds to non-Indigenous people. In sentencing courts, this has provided as much benefit to Indigenous people as in has provided detriment (see Coulthard 2014). Courts may acknowledge an Aboriginal person’s lesser culpability, due to their background of socio-economic deprivation, but equally they regard membership of an Aboriginal community as a criminogenic factor that increases their risk to the wider community (Cunneen et al 2013: 104; Anthony 2013: 83). In Australia, while recognising Indigenous difference of deprivation, the High Court has refused to consider systemic colonial injustices to Indigenous people in sentencing (Bugmy 2013) or to reconsider the legitimacy of its own authority over Indigenous nations (Walker 1994). Therefore, if reconciliation exists in criminal courts, it involves, as Taiaiake Alfred (2009: 181-2) explains, reconciling with colonization in a way that ‘absolves colonial injustices and is itself a further injustice’. After all, how does a postcolonial system that exists by virtue of denying authority to the legal systems of Indigenous nations have capacity to reconcile with Indigenous nations without atoning for past injustice?

The starting point for reconciliation in the criminal law system requires that the system needs to hold a mirror up to its own criminogenic role rather than pointing the mirror at Aboriginal people. Courts need to recognise that the state’s criminal law apparatus contributes to the problem of Indigenous people being criminalised. The first section identifies the punitive colonial complex that has governed Indigenous Australians for almost 230 years. This chapter then identifies the High Court of Australia’s recent decision of Bugmy in absolving these injustices by refusing to consider systemic injustices to Indigenous Australians, and contrasts this with the Canadian approach. The third section considers more radical attempts to engage Indigenous community views in sentencing and thus displace the normalisation of white officialdom in the criminal justice system. This can provide openings for challenge the limits of reconciliatory gestures that are dependent on the white gaze of the courts. The final part reintroduces the ideas of Taiaiake Alfred (2009: 181) and his colleagues that suggest that Indigenous justice requires resurgence, regeneration and restitution, which involves Indigenous nations pushing back on colonial authority to force the state to give back what has been stolen and accept coexisting Indigenous nations. This does not mean ‘irredentism’ but rather settlers giving back ‘enough’ power to Indigenous nations to demonstrate ‘respect for what we share’ and make ‘things right by offering us the dignity and freedom we are due’ (2009: 182). In the Australian justice space, this opens up questions about the legitimacy of the state’s universal criminal law jurisdiction and the capacity for Indigenous nations to have a play a greater role in the justice, safety and wellbeing of their communities.

THE PUNITIVE PRISM OF SETTLER COLONIAL RELATIONS

Settler colonial society forms its character through excluding Indigenous people and displacing Indigenous societies. In Australia, the British Crown invoked the notion that land belonged to no-one at the time of colonisation – legally termed as terra nullius – to give legal credence to its exclusive authority. This enabled the British Crown to reign supremely in the political and legal system, acquire title in all land and impose its economic system. The colonial legislatures and courts made Indigenous people subjects of their legal system. In their daily lives, Indigenous people were under the authority of colonial police who could exercise brutal power without being held to account. For over one hundred years after colonisation, colonial legislation provided separate punitive provisions for Indigenous people. The Capital Punishment Amendment Act 1871 (WA) set down public execution solely for Aboriginal peoples. Corporal punishments were solely inflicted on Aboriginal offenders under the Summary Trial and Punishment of Native Offenders Ordinance 1849 (WA) and the Aboriginal Offenders Amendment Act 1892 (WA). Further, the South Australian Government enacted the Breach of Contract Act 1842 with the Aboriginal Native Offenders Act 1849 to regulate Indigenous employment, including by allowing ‘whipping of up to two dozen lashes in lieu of or in addition to imprisonment’ where an Indigenous worker objected to employment conditions or absconded (Thorpe 1992: 90–1).

Similar to the colonial policies in Canada, New Zealand and the United States, and consistent with the proposals of the British Select Committee on Aborigines (1837), Australian policies of segregation excluded Indigenous people from residing in the same places as non-Indigenous people. From the mid to late nineteenth century, exclusion was ensured under the Aboriginal Protection Acts. These Acts prohibited Indigenous people from exercising choices over their movement, culture, marriage and children, employment and money.^[2] Instead, a myriad of non-Indigenous Aboriginal Protectors made decisions in relation to all aspects of Indigenous peoples’ lives, including their residence on missions, government settlements or place of employment. Under the Northern Territory Aboriginals Ordinance (1918) s 6(1), the Chief Aboriginal Protector was entitled ‘at any time to undertake the care, custody, or control of any aboriginal or half-caste’. Punishment for resisting the authority of the Aboriginal Protector included indefinite incarceration. In Queensland a number of islands, such as Fraser Island and Palm Island, were designated for such punishment. Palm Island in particular was known for holding Indigenous people who disobeyed white authority and spoke out against Queensland’s Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Watson 1995: 151).

By the 1950s, the Aboriginal Protection Acts were repealed in favour of an official policy of assimilation (see Hasluck 1953, 1988). However, exclusive powers to police and punish Indigenous people persist under contemporary legislation in the Northern Territory. Originating in 2007, special laws in Indigenous communities, particularly in remote areas governed by Aboriginal land rights legislation, provide police with greater search and seize powers. In its current legislative form, the Stronger Futures in the Northern Territory Act 2012 (Cth) makes it an offence to consume alcohol in designated ‘alcohol protected areas’ (ss 8, 27). This consumption offence goes further than the prohibitions under the Aboriginal Protection Acts that were directed to prohibiting the supply of alcohol to Aboriginal persons.^[3] The Stronger Futures in the Northern Territory Act 2012 in conjunction with the Liquor Act 1978 (NT) s 95, gives police powers to seize any vehicle carrying liquor in designated Aboriginal areas, and, in conjunction with the Police Administration Act 1978 (NT) s 119, to search an Aboriginal person’s body or to enter a house to conduct alcohol searches without a warrant or permission. Aboriginal people have widely described this law as intrusive and punitive (see Pilkington 2009: 11, 52, 174).

With the removal of Aboriginal people from white-administered Aboriginal reserves, missions and settlements by the 1970s, police and welfare authorities alike increased their surveillance of Indigenous people. This led to a shift in practice from segregation of Aboriginal people in administrative enclaves to segregation through penal detention (Hogg 2001). Prejudicial policing of minor street offences led to a steep escalation of Aboriginal people in police custody and prisons (Eggleston 1976). Along with this increase came soaring numbers of Indigenous deaths in police custody and prisons (Royal Commission into Aboriginal Deaths in Custody 1991).

Today, Indigenous people are 28 times more likely than non-Indigenous people to be in prison (Australian Bureau of Statistics 2015).^[4] Indigenous people are especially over-criminalised for crimes relating to public disorder. In the Northern Territory, special laws known as ‘paperless arrests’ were designed to take disorderly people off the streets, irrespective of whether they have committed a crime; the great majority of these people – over 70 per cent – are Indigenous (Hunyor 2015: 3). Indigenous women, youth and those with disability experience even greater rates of over-representation in prisons and juvenile detention (Australian Bureau of Statistics 2015). Most Indigenous people in prison have been victims of abuse or trauma and have not been able to access Aboriginal support or services (Sherwood 2013). To use the term of Pugliese (2007), imprisonment and other interactions with the criminal justice system are but one part of a series of ‘event traumas’ for many Indigenous people, which also include forced removal of Aboriginal children from families; undiagnosed and untreated disabilities; involuntary admissions to psychiatric institutions; and the experience of racist attitudes.

However, the criminal justice system does not seek to account for postcolonial circumstances facing Indigenous people. Rather, it drives and is driven by ‘constructions of Indigenous peoples, as the sole cause of their poor status’ and as responsible for their criminogenic profile (Sherwood 2013). The government’s prevailing law and order agenda lacks compassion and empathy for Indigenous circumstances (Cunneen 2016; also see Quinn 2016). It does not address foundational issues relating to healing and justice for Australian Indigenous people on the one hand, or over-policing and over-criminalisation of Indigenous people on the other hand. As Sutherland (2002) explains in the Canadian context, the state and the legal system need to recognise their role in colonial policies and practices and endeavor to address the ‘root cause of crime: alienation and separation from indigenous heritage’. The following section addresses the long road that the Australian legal system has to embark on in order to come nearer to this vision of justice, particularly given the humps it has recently created. It goes on to discuss the Canadian judiciary’s acceptance of its responsibility for postcolonial wrongs, but argues that restitution and decolonisation is an ongoing aspiration.

REFRAINING FROM RESPONSIBILITY FOR OVER-IMPRISONMENT: THE HIGH COURT OF AUSTRALIA IN BUGMY

Since the high tide of assimilation policies in the 1950s, there have been several watersheds in Indigenous rights, especially in relation to land, Aboriginal organisational and community self-governance and national representation. However, the tendency in more recent years has been towards mainstreaming the state’s governance of Indigenous people and nations. So-called culturally neutral approaches in Australian politics can be juxtaposed with Canadian governance patterns that have, to a greater extent, recognised the role of Indigenous nations in forming policy. The Canadian government’s attitude, alongside decades of Indigenous activism, led to the establishment of Canada’s Truth and Reconciliation Commission that examined the state’s systematic forced removal of Aboriginal children for over 150 years. The disposition of the Canadian government and the ensuing gains for Canada’s First Nations should not be overstated (see Regan 2010), but it may nonetheless help elucidate the divergence between the Canadian and Australian judicial position on sentencing Indigenous people. The Australian stance could be characterized as one of denial: denial of a colonial past; denial of the postcolonial present and enduring Indigenous trauma, and denial of the resilience of Indigenous nations. The Canadian stance is one of recognition and remorse for this colonial paradigm, although not, as Taiaiake Alfred (2009) proffers, one of restitution.

The culturally neutral approach to sentencing Indigenous Australians originates in the legislative framework. In general, sentencing is structured in legislation according to stipulated principles and purposes (e.g. proportionality, deterrence, protection of the community, rehabilitation and denunciation of the offender), a range of objective and subjective mitigating and aggravating factors (e.g. harm of offence, remorse and intoxication) and maximum or occasionally mandatory penalties. With very minor exceptions,^[5] these laws do not make reference to Indigenous input or considerations in criminal sentencing. This contrasts with Canada legislation that seeks to account for Aboriginal background circumstances (including relevant systemic colonial factors) and promote non-prison sentences for Aboriginal peoples. Within the confines of the legislation, Australian higher courts have considered the relevance of individual Indigenous factors, which indicate attempts at reconciling the legal system to Indigenous difference. Courts have identified the Indigenous defendant’s impoverished upbringing, experience of intergenerational trauma created by systemic Aboriginal child removal, subjection to Aboriginal community punishment and alienation from imprisonment.^[6] However, such reconciliation has brought to the fore stereotypes regarding widespread alcoholism and violence in Indigenous communities.^[7] This reveals the malign side of reconciliation when it is predicated on white perceptions.

More recently the High Court of Australia, in its decision of Bugmy v The Queen (2013), rejected the relevance of Indigenous collective experiences in sentencing. In that case, the High Court was given an opportunity to recognise the responsibility of the criminal justice system in the over-incarceration of Indigenous people in the sentencing process, and to account for it as one systemic disadvantage facing Indigenous offenders. In its decision, the High Court did not put a mirror to its judicial face and consider how sentencing courts may be responsible for this over-representation. This is despite research over a number of decades that has found that Indigenous people are not sentenced as fairly as non-Indigenous people (Eggleston 1976: 176; Luke and Cunneen 1998: 80; Royal Commission into Aboriginal Deaths in Custody 1991: 217; Fitzgerald 2009: 4-5; Lockwood et al 2015: 769), which has contributed to their over-imprisonment.^[8] Jeffries and Bond (2009: 55) claim that there are strong grounds for Indigenous contexts leading to a reduced sentence, stating that Indigenous identity sheds light on ‘the causes or reasons for offending, and broader social and policy expectations’ that make a ‘theoretically strong’ case for reducing sentence severity. However, the High Court ruled out consideration of systemic issues and accordingly absolved its own responsibility.

The defence in Bugmy (2013) unsuccessfully submitted to the High Court that it should adopt the Canadian approach. This approach seeks to reduce prison sentences for Indigenous offenders in an effort to redress the judiciary’s contribution to their over-imprisonment. In 1996, in recognition of Aboriginal over-representation in prisons, the Canadian government introduced a new provision into the Criminal Code, RSC 1985, c C-46 (‘Canadian Criminal Code’). Section 718.2(e) provides that ‘all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders’. By explicitly directing attention to the ‘circumstances of aboriginal offenders’, the Canadian legislature has acknowledged the unique position of Aboriginal Canadians. This includes as a result of systemic disadvantage, discrimination and over-representation in prisons. Indeed, Canadian rates of Aboriginal imprisonment are comparable to those in Australia (Wahlquist 2016). By accounting for these factors in sentencing, Canadian courts can attribute a collective identity to the Indigenous person to ensure that they are sentenced according to their Indigenous experience rather than according to non-Indigenous experiences. This legislative amendment represents an act of reconciliation and an acknowledgement that the criminal justice system is part of the ‘problem’ for Aboriginal Canadians.

The Canadian courts, contrary to the High Court, accept judicial responsibility in over-incarcerating and discriminating against First Nations people. In the leading case of Gladue (1999: 734) on Aboriginal sentencing, the Supreme Court of Canada pointed to Indigenous disadvantage flowing ‘from the staggering injustice currently experienced by aboriginal peoples with the criminal justice system’. In its subsequent seminal decision on sentencing, Ipeelee (2012: 479), the Supreme Court acknowledged that ‘Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process’. In line with the Criminal Code, Canadian courts now seek to remedy the systemic failure of courts to take proper account of the unique circumstances of Aboriginal offenders coming before their courts. The Supreme Court of Canada held in Ipeelee (2012: 474) that the Canadian Criminal Code s718.2 aimed to curb the ‘discriminatory manner’ in which sanctions operated. To do this required ‘a specific direction’ to judges that they properly ‘undertook their duties’ by paying ‘particular attention to the circumstances of Aboriginal offenders’ (2012: 474). The Supreme Court seeks to promote sentences that are ‘remedial’ and ‘restorative’ in nature, rather than penal (Gladue 1999: 737). It has identified the important role of sentencing judges in affecting outcomes for Indigenous people:

Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. (Gladue 1999: 723)

The Supreme Court of Canada was unequivocal that the judicial notion of individualised justice in sentencing required consideration of the unique and systemic factors bearing on Aboriginal offenders vis-à-vis non-Aboriginal offenders (Gladue 1999: 706, 708). It regarded the Indigenous offender as existing within the context of the collective experience of Aboriginal Canadians, which may explain the individual’s offending behaviour (1999: 725, 728-9). These experiences include colonial and post-colonial dislocation, discrimination, child removal, socioeconomic disadvantage, lower educational attainment, community fragmentation, higher rates of substance abuse and suicide, and ‘of course higher levels of incarceration for Aboriginal peoples’ (Ipeelee 2012: 469, 484–6). The Court acknowledged that the same collective experience offers the potential for innovation in sentencing processes and unique Aboriginal pathways for punishment, healing and reform (Gladue 1999: 725-8).

To facilitate the reconciliation process in sentencing, courts accept Gladue Reports, generally written by First Nations people and organisations, about the Aboirginal offender’s personal and community circumstances.^[9] They provide information on issues relating to institutional racism, poverty, forced child removals by the state, over-incarceration in his/her community, high suicide rates in his/her community, lower education attainment, abuse (including in non-Aboriginal institutional settings) and health issues. Their reports explain offending behaviour within the collective history of Aboriginal Canadians, highlighting the link between the individual and collective experience, including the negative impact of prior government policies such as assimilation and segregation (April and Orsi 2013: 11; Jeffries and Stenning 2014: 256). The report writers also provide information on culturally-relevant sentencing options (such as healing programs and support groups) available in the offender’s community (Hannah-Moffat and Maurutto 2010: 266). The Aboriginal organisations, such as the Aboriginal Legal Services in Toronto, that administer the report-writing process also provide support after the sentencing. The reports provide information by First Nations people rather than simply about First Nations people.

The High Court of Australia in Bugmy did not recognise judicial responsibility in Indigenous over-incarceration in line with the Canadian approach, or that Indigenous collective experiences are relevant sentencing considerations. The case of Bugmy involved an appeal to the High Court on the grounds inter alia that his sentence was manifestly excessive and sentencing practices for Indigenous offenders should consider systemic postcolonial Indigenous circumstances. The case concerned William Bugmy, a 29-year-old Indigenous man from the remote town of Wilcannia in New South Wales, who assaulted a prison guard while he was on remand, due to a dispute over visiting hours. Bugmy threw a pool ball at a correctional officer, which caused him to lose sight in one eye. Bugmy’s personal circumstances were of extreme disadvantage. His childhood involved exposure to violence and alcohol, including witnessing his father stab his mother 15 times. Bugmy started drinking and using illegal drugs at the age of 13 and was described as an alcoholic. He was unable to read or write and also had a history of head injuries and suffered from auditory hallucinations. He had made repeated suicide attempts and was receiving antipsychotic medication in custody. He had a lengthy criminal history from the age of 12, including violent offences. He had served numerous terms of imprisonment for these offences and had spent much of his adult life in prison. He had never attended a detoxification or rehabilitation facility, despite asking for help with managing his alcohol abuse on numerous occasions. He had a negative attitude towards authority figures, particularly the police, which were attributed to family ‘cultural issues’.

Although the High Court allowed Bugmy’s appeal, on the ground that the Court of Criminal Appeal had failed to determine whether Bugmy’s sentence was manifestly inadequate, it maintained that ‘tak[ing] judicial notice^[10] of the systemic background of deprivation of Aboriginal offenders cannot be accepted’ (Bugmy 2013: 594). It regarded such notice as ‘antithetical to individualised justice’ and potentially racially discriminatory (2013: 594). It failed to appreciate, in line with the Canadian approach, that accounting for systemic injustice to Indigenous people was a means of remedying judicial discrimination in the sentencing process, rather than a means of promoting discrimination (see Anthony et al 2015: 67).

The consequence of the Bugmy decision is that Australian sentencing courts are not required to account for the relevance of the over-incarceration of Indigenous Australians. They are absolved from recognising the contribution of the criminal justice system to over-imprisonment and the need for it to provide some redress through reducing penal sentences and ordering more appropriate community-based sentences. Judicial responsibility for over-incarceration is a minimal step towards reconciliation in the criminal justice system. However, it is not a panacea in a system in which greater numbers of Indigenous people are being criminalised. In Canada, the judicial stance has not reduced rates of Indigenous over-incarceration, revealing reconciliation as a form of ‘recognising’ without ‘restituting’. As discussed above, if postcolonial societies are to move away from their original penal approaches to Indigenous people, decarceration is a signifier of this shift. However, it needs to also involve shifting the power balance towards Indigenous governance models. The following section identifies how Indigenous people have been empowered in criminal sentencing matters, but goes on to question what more needs to be done for restitution and Indigenous resurgence.

MOVES FROM RECONCILIATION TO RESURGENCE OR MORE OF THE SAME SETTLER TRADITIONS?

In a powerful piece by Gaymarani (2011: 299), a Yolŋu Elder from Arnham Land (northern Australia), he asserts that justice in Indigenous communities requires vesting authority in the local (Ngarra) law and its governance practices. These practices have long traditions in law making and adjudicating matters in highly structured settings. He states that his community feels that criminal matters would be better resolved if the state’s Court of Summary Jurisdiction was replaced by a Yolŋu community court that primarily applies Ngarra law. Gaymarani suggests that this model would more effectively enhance safety and the well-being of the Yolŋu, because it has the mechanisms to address the problems in the community and build on its strengths, but also because it has meaning for local people, which does not apply to Yolŋu people’s engagement with the state criminal justice system. Gaykamangu (2012: 248) stresses that Ngarra law sentencing options need to be available to Indigenous courts, such as exile from family, community work orders, discipline by responsible Elders or compensating the victim of the crime. This is a plea for resurgence of Indigenous justice models. Alfred and Corntassel (2005: 610, also see Corntassel 2012, Alfred 2005) describe resurgence of Indigenous nationhood as requiring peaceful confrontation with colonisation to revitalise Indigenous traditions.

This section addresses Australian initiatives in relation to Indigenous sentencing courts and Indigenous law and justice groups. These initiatives promote Indigenous voices in the criminal sentencing process in order to empower Indigenous people and provide a fuller picture of circumstances facing Indigenous offenders, including systemic issues relating to their community’s experience of colonisation, as well as seek to enable Indigenous justice practices to coexist with non-Indigenous justice practices. This section considers how these initiatives unsettle white voices in sentencing. It concludes that these initiatives can only displace the white criminalisation processes, and promote a subaltern vision of justice evocative of that proposed by Gaymarani and Gaykamangu, with ongoing contestations to colonising structures and attitudes.

Indigenous sentencing courts

In a small number of courts, typically local courts dealing with minor matters,^[11] Indigenous offenders can have their sentencing heard by Indigenous Elders and/or other Indigenous respected persons. These Indigenous persons speak to the offender about their circumstances (e.g. lack of access to stable housing or health services), family relationships, the offence and its consequences for people in the community, and provide advice to the judicial officer on sentencing options that reflect the effect on the Indigenous community and pathways for the offender’s reform.^[12] The courts may reconcile the offender, victim and community and/or send the offender a message about the impact of his/her offence on the community. These ‘Indigenous sentencing courts’ transform the court process, space and outcomes in ways that are more compatible with Indigenous justice concepts (see Marchetti 2010: 271). Marchetti and Daly’s (2012: 436) research shows how Indigenous sentencing courts provide ‘innovative justice’ by incorporating Indigenous knowledge, values, design and modes of social control into the sentencing process. In this way, Indigenous courts ‘bend and change the dominant perspective of “white law”’ (Marchetti and Daly 2007: 429). Such courts do not operate in Western Australia and the Northern Territory – the Australian jurisdictions with the highest rates of Indigenous incarceration and possessing strong Indigenous justice structures – after both jurisdictions recently outlawed or defunded their operations (Anthony and Crawford 2014; Banks 2015).

Initiatives around Indigenous sentencing courts emerged over 15 years ago due to Indigenous peoples’ experience of the criminal justice system failing to incorporate Indigenous practices and perspectives.^[13] Indigenous sentencing courts were first established in Port Adelaide, South Australia in 1999 and in Nowra, New South Wales in 2002 (Dick 2006: 6). Indigenous communities worked with judicial officers and court administrators to establish Indigenous sentencing courts, and to push for legislation to accommodate these courts.^[14] The processes have evolved organically based on the jurisdiction, judicial officer and the expectations and needs of Indigenous participants. They commonly involve Indigenous people, court actors, including the judicial officer, prosecutor and defence lawyer, support people and occasionally the victim siting in a circle; either in a court room, a room culturally significant to the Elders, or outdoors.

The judicial officer has significant discretion as to how the court runs, where it is held, where the Elders are seated and the sentencing outcome. Ultimately the judicial officer is the final arbiter on who constitutes the Community Court and whether the court operates for a particular hearing or altogether. Where judicial officers are reluctant to engage the authority of Indigenous Elders, the Elders will be required to physically sit underneath the judicial officer who retains his/her seating position above the court. They will also limit the participation of Elders in the court and the impact of Elders’ advice on the sentencing outcome. Although most judicial officers who preside over Indigenous sentencing courts have a strong commitment to their operation and defer significant power to the Indigenous Elders, this remains dependent on the judicial officer’s and other court participants’ commitment to transformative practices (Marchetti and Ransley 2015: 15). Without this commitment, the courts fall short of their reconciliatory endeavours and a far cry from opening up spaces for Indigenous resurgence. Taiaiake Alfred (1999: 27) warns that where ‘unjust power relationships and colonized attitudes remain untouched’, ‘“reform” becomes nothing more than a politically correct smokescreen obscuring the fact that no real progress is being made towards traditionalist goals’.

The sentencing advice provided by Indigenous Elders and Respected Persons to a magistrate or judge must fall within the confines of the state’s criminal and sentencing laws, although these options may be interpreted broadly to include Indigenous punishments such as sending young boys who have offended to camp on country as part of their rehabilitation (see Anthony and Crawford 2014).^[15] The Indigenous sentencing courts do not have capacity to determine sentences or processes that are purely consistent with Indigenous practices and punishments. However, they can have a positive impact on strengthening Indigenous community social controls and community relationships according to a number of studies (Beranger et al 2010; Borowski 2010, 2011; Fitzgerald 2008; Morgan and Louis 2010; Blokland 2007: 10-11). Moreover, an evaluation by the Cultural and Indigenous Research Centre Australia (2008) found that Circle Sentencing has a ‘dramatic influence on offenders beyond reoffending’, such as in relation to substance abuse, employment and family relations. Overall, evaluations of sentencing courts show significant benefits derived for Indigenous participants where the judicial officer has been committed to engaging Indigenous perspectives and worldviews and transforming the nature of the court. In these situations, Indigenous sentencing courts have empowered Indigenous Elders in justice outcomes and challenged the Anglo-centric nature of the justice system.

Indigenous community justice groups: examples from the Northern Territory

In the Northern Territory since the late 1990s, four remote Australian Indigenous communities have initiated Law and Justice Groups in order to enhance their input in the justice system. These groups formulated plans in conjunction with the Northern Territory Government and police to provide a range of strategies for two-way justice. Although there have been a number of breaches by the police that have caused significant concern to communities (see Anthony and Chapman 2008), they continue to both advocate the resurgence of Indigenous justice models and have input into sentencing decisions. This resilience prevails in spite of the government and judiciary’s abolition of Indigenous community sentencing courts in 2011 (Hannam 2013). Law and Justice Groups (LJGs) provide written pre-sentencing advice to the magistrate based on an evaluation of the offense (in terms of its significance to the community) and the offender (including his or her risk to the community and capacity to rehabilitate and reintegrate into the community). There are currently four Law and Justice-styled Groups involved in pre-sentencing in the Northern Territory: Lajamanu’s ‘Kurdiji’ Law and Justice Group (established in 1998 and reconstituted in 2009) and the Yuendumu Mediation and Justice Group (established in 2006) in Warlpiri communities in Central Australia, Wurrumiyanga’s Ponki Mediators in the Tiwi Islands (established in 2009) and Maningrida’s Bunawarra Dispute Resolution Elders in the Top End (established in 2012). The Kurdiji Group has a meeting area building and the group meets approximately every eight weeks to discuss community safety, crime prevention, community governance, inter-agency collaboration and provide pre-sentence reports to the court on particular defendants (Central Land Council 2013, Kurdiji 2014).

In relation to sentencing, the process of report writing in Lajamanu, Wurrumiyanga and Maningrida involves the North Australian Aboriginal Justice Agency’s community legal educator informing the LJG of the court list, offenders’ charges, the summary of agreed facts and prior offending. The LJG then decides the cases for which they are prepared to write a letter of support and writes references outlining the group’s knowledge of the offender’s background and community circumstances, information on the offender’s role in the community, views about the offending, the offender’s character, and ideas for the offender’s rehabilitation and punishment, including as administered by community members such as participation in community work or ceremony or compensating the community.^[16] The letters are provided to the defendant’s lawyer before being submitted to the magistrate during sentencing submissions. The group members make themselves available for cross-examination if requested. In addition to this function, the group is involved in dispute resolution to resolve conflicts before they escalate and can play an important role in individual’s rehabilitation (see Anthony and Crawford 2014). The LJGs play a broader role in community justice and law and justice planning, enabling defendants and victims to have appropriate support. The LJG is also strengthened through its involvement in sentence reports.

Pre-sentence reports, like Indigenous sentencing courts, are effective where they can advise on a broad range of sentencing orders that are relevant to the community, such as participation in local programs and activities.^[17] They can promote appropriate, holistic and workable solutions and sentencing orders. They also ensure collective responsibility in implementing sentencing outcomes (Thomas 1999). Through promoting community-based solutions, the reports can have a dual benefit in the reconciliation process by, first, diminishing the tendency of the criminal justice system to incarcerate Indigenous people and, second, by strengthening the role of Indigenous laws and protocols in the lives of the defendant and thus strengthening the Indigenous community. In their most effective manifestations, Indigenous sentencing courts, report writing processes and justice plans can shift the power balance towards Indigenous systems of authority, elucidate the colonising nature of the criminal justice system that is otherwise blind to Indigenous perspectives, and reveal a pathway to resurgence.

RECONCILIATION WITH COLONISATION?

While Indigenous sentencing courts and pre-sentence reports point to avenues for strengthening justice for Indigenous people in the criminal justice system, they do not challenge the jurisdiction of criminal courts, which many Indigenous people continue to question their legitimacy. Given that Australian land was never ceded; never the subject of a treaty or lost in battle, Indigenous nations still have legitimate claims to governance. These claims are facially strengthened in law by the High Court’s recognition that British occupation relied on a false notion of terra nullius (Mabo v Queensland (No. 2) 1992), and the Federal Court’s acceptance that Yolŋu people in north-east Arnhem Land possessed an elaborate body of Indigenous laws prior to colonization (Milirrpum v Nabalco Pty Ltd 1971: 267).^[18] In parts of Australia, especially more remote northern areas, Indigenous Elders are endeavouring to reset the justice arrangements between the state laws and their laws on the grounds that they have a lawful claim to live according to their justice systems (see Loy 2010; Gaykamangu 2012; Gaymarani 2011; Gondarra 2006, 2011).

From the early colonial period, the Supreme Court of New South Wales renounced the legitimacy of Indigenous punishment on the grounds that ‘Indigenous tribes’ were not constituted as ‘sovereign states governed by laws of their own’. Rather, the British state had taken into ‘actual possession’ half of the Australian continent and could exercise ‘the rights of Domain and Empire’ (R. v. Murrell & Bummaree 1836: [211]). The High Court of Australia has more recently ruled that Indigenous people cannot be subjected to their own criminal laws, procedures and punishment processes. This is based on a circular rationale that the state’s criminal law is universal and unable to coexist with other law systems. High Court Chief Justice Mason stated in Walker v State of New South Wales (1994: 50) that ‘English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it’. The High Court does not address what gave the British Crown and the postcolonial Australian state its exclusive university authority, given that Indigenous nations exercised jurisdiction over its people for thousands of years before colonisation in 1788. Indeed, in the Northern Territory, courts recognise the ongoing operation of Indigenous punishment practices, but nonetheless outlaw them because they offend non-Indigenous values (see Re. Anthony 2004; R v Sims & Walker 2012).

The judicial (and political) unwillingness to consider shared jurisdiction highlights the precarious nature of Indigenous inclusion in sentencing processes. This precarity is brought into sharp relief when Indigenous justice initiatives and community courts lose state funding and support (see Anthony and Crawford 2014; Banks 2015; Karp 2016). It is otherwise apparent through Indigenous sentencing courts continuing to operate on the margins and their inability to challenge the foundation and content of western law. Aside from the small enclaves of Indigenous sentencing courts, most Indigenous people are subjected to a white legal system with white participants – judicial officers, lawyers, community corrections and corrective services officers and juries – and a white law steeped in a western worldview.^[19]

Indigenous resurgence requires more than the inclusion of Indigenous voices in sentencing, but a regeneration of Indigenous governance structures, such as Gaymarani articulates in Arnhem Land, that continue to have capacity to strengthen Indigenous communities. This requires engaging with Indigenous communities, Elders and lawmakers in a way that decentres postcolonial power. The idea of resurgence, according to Alfred (2009: 182), is not irredentism, but power sharing that enables Indigenous expressions of power over their affairs. The Aboriginal Provisional Government (1990) articulated a vision of power sharing in terms of Indigenous nations having control of their political and legal system on Aboriginal land acquired through land rights legislation, and the retention of non-Indigenous governance on non-Indigenous land, with agreements between the two jurisdictions governing their coexistence. Although the intricacies of Indigenous nation building need to be determined by local Indigenous communities, this type of proposal promotes resurgence that challenges the complacent foundations of colonialism (see Alfred 2005: 130). It advocates ‘enough’ power for Indigenous nationhood to be sustainable alongside non-Indigenous jurisdictions (Alfred 2009: 182).

CONCLUSION: DECOLONISING THE CRIMINAL JUSTICE SYSTEM

If we are to transcend the limits of reconciliation and seek something more – such as such as resurgence and decolonisation – there needs to be a deconstruction of the authority of the criminal justice system as it applies to Indigenous and non-Indigenous people. This is because criminal justice in Australia is based on excluding Indigenous societies and people. This chapter traces that story of exclusion in Australia to point to the limits of attempts at reconciliation within criminal justice institutions that deny Indigenous authority. In Australia, racism persists through exclusion of Indigenous laws and practices and failure to accommodate Indigenous difference in the legal system leading to unfair sentences. The ‘norm of colorblindness’, according to critical race theorist Cheryl Harris (1993: 1768), upholds ‘whiteness’ by denying the ‘historical context of white domination and Black subordination’. The current High Court of Australia position accords responsibility to Indigenous people for their incarceration, which overlooks systemic wrongs and thus reproduces the biases in the system. It also creates a situation in which the strengths that Indigenous communities may offer the Indigenous offender are overlooked, such as strong family and kinship relationships, healing programs and support services, to promote restorative sentencing outcomes. Accordingly, it is unable to look beyond the penal system – both in its prison and diversion forms (Steel et al 2016) – and towards solutions in community and on country.^[20] So long as the criminal justice system fails to see its role in contributing to the imprisonment problem for Indigenous people, it perpetuates the wrong.

However, reconciliation involving recognition of Indigenous difference in sentencing is also problematic. It lets the Australian judiciary and legislature off the hook. This strategy short circuits a more confronting inquiry into the legitimacy of the colonial legacy that displaced Indigenous justice processes and laws. According to Moreton-Robinson (2003: 23), whiteness is based on ‘an invisible regime of power that secures hegemony’ through the ‘epistemological a priori’ of the righteousness of white claims to law and governance. This sense of righteousness paralyses the High Court’s ability to reexamine the basis of the criminal justice system in the same way that it has reexamined the land tenure system and provided for coexisting native title rights, al beit with limited gains for Indigenous land rights.

The responsibility of the non-Indigenous criminal justice system is not tantamount to making postcolonial courts better; it is about the transformation of postcolonial authority. This involves reconstituting jurisdictions to shift power from non-Indigenous appointed judicial officers and legal precedent, towards Indigenous community justice strategies, laws and knowledge systems. In challenging the system, we bring into sharp relief the white ontology of judicial officers and the white epistemology of the legal system and provide a channel for undoing the injustice towards Indigenous people that the postcolonial state’s criminalizing system has created.

Given that sovereignty was never ceded by Indigenous nations, or lawfully acquired by colonisers, there are grounds for challenging the authority of the criminal courts. Indeed, a number of nations have already put demands challenging the authority and prejudicial functioning of the non-Indigenous criminal justice system (e.g. Warlpiri people, see Loy 2010; Yolŋu people, see Gaymarani 2011; Gondarra 2006). Other nations have developed hybrid systems of justice where state and Indigenous laws, dispute resolution practices and justice values coexist. These have been successful where they are owned by Indigenous communities and integrated with Indigenous law and governance instruments (see Blagg 2008: 140). There are Australian models of local community justice frameworks and law and justice plans and agreements between Indigenous communities and governments. Essential to these tasks is that colonial modes of justice and power are decentred and Indigenous modes are elevated in Indigenous lives and beyond. Indigenous resurgence can take many forms in the criminal justice space, but mere recognition of Indigenous difference is not one of them.


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^[1] Associate Professor in Law, University of Technology Sydney. Thalia would like to thank Alison Whittaker for her editing and thoughtful comments.
^[2] For example, Aboriginal Protection Act 1869 (Vic); Aborigines Protection Act 1886 (WA); Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld); Aborigines Protection Act 1909 (NSW); Aborigines Act 1911 (SA); Aboriginals Ordinance 1911 (Cth); and Aboriginals Ordinance 1918 (Cth).
^[3] For example, Aboriginal Protection Act 1869 (Vic) s 6; Aborigines Protection Act 1909 (NSW) s 9; Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) s 19.
^[4] In addition to prison, criminal net widening has meant Indigenous people are more likely to also receive other forms of punishment, including fines and community corrections (such as intensive corrections and supervision orders, and parole). In 2011–12, Indigenous prisoners were 13 times more likely to be serving time in community corrections than non-Indigenous prisoners (Australian Institute of Criminology 2014).
^[5] In the Australian Capital Territory, Queensland and the Northern Territory, legislation refers specifically to the offender’s cultural background. Sentencing legislation in the Australian Capital Territory specifies that the court must consider whether the cultural background of the offender is relevant. Courts in Queensland, when sentencing an Aboriginal or Torres Strait Islander person, must have regard to submissions made by a representative of the community justice group in the offender’s community, including ‘any cultural considerations’ (Penalties and Sentences Act 1992 (Qld) s9(2)(p)). In the Northern Territory, a sentencing court may receive information about an aspect of Indigenous customary law, or the views of members of an Indigenous community (Sentencing Act 1995 (NT) s 104A). However, there are major restrictions that limit the receipt of this information, including the fulfilment of certain procedural requirements (s 104A), and excluding any information relating to cultural background or customary law to mitigate or aggravate a sentence (Crimes Act 1914 (Cth) ss 16A-AA). The latter provision originally required the suspension of the Racial Discrimination Act 1975 (Cth) to allow its passage.
^[6] Eg, Fernando (1992); R v Minor (1992); Fuller-Cust (2002).
^[7] Eg Fernando (1992); Munda (2013).
^[8] Some studies indicate that courts send Indigenous people to prison at a higher rate because of their criminal history and the seriousness of their offending (Snowball and Weatherburn 2006: 5, 2007), although do not compare individual circumstances affecting culpability.
^[9] Gladue Reports are not available for all Aboriginal offenders or across all provinces, preventing a significant proportion of Aboriginal offenders from having relevant information on their Nation’s circumstances and background presented to sentencing courts.
^[10] An accepted fact that does not require additional information because of its reliability.
^[11] In South Australia and Victoria, the Indigenous court processes are also used in higher court levels for serious offences. Some limit the types of offenses that can come before the courts (e.g., breaches of family violence protection orders are excluded in Victoria but associated charges of assault can be brought before the Victorian courts; sexual offenses are excluded in all of the jurisdictions apart from Queensland and South Australia; and certain drug offenses and offenders who are addicted to illicit drugs are excluded in New South Wales and the Australian Capital Territory).
^[12] Indigenous sentencing courts currently operate in some locations in New South Wales (circle sentencing), Queensland (Murri Courts), Victoria (Koori Courts) and South Australia (Nunga Courts).
^[13] This issue was raised in the Australian Royal Commission into Aboriginal Deaths in Custody (1991) and was identified in its Recommendation 104 that Aboriginal communities and organisations be consulted in sentencing.
^[14] Legislation supporting Indigenous sentencing courts include the Magistrates’ Court Act 1989 (Vic) s 4D, the Criminal Procedure Act 1986 (NSW) s 348, and the Penalties and Sentences Act 1992 (Qld) s 9(2)(p).
^[15] In the Northern Territory, Indigenous people have the potential to be involved in a range of sentencing outcomes that conform with the legislation, including supervising community-styled orders such as exile and participation in a ceremony or a work camp. See Gosford; R v Yakayaka and Djambuy (Unreported, Supreme Court of Northern Territory, Riley CJ, 17 December 2012).
^[16] In addition, Indigenous community pre-sentencing reports also exists in Queensland. Unlike in the Northern Territory where the Indigenous community directed the process, in Queensland the Department of Justice instigated the program. Community Justice Groups prepare ‘cultural reports’ with the assistance of an Indigenous coordinator from the Department of Justice to inform the court of the background of the offender and the availability of support services. This is a wide-spread program that seeks to be available to all Indigenous people in Queensland facing a sentence of imprisonment.
^[17] The Royal Commission into Aboriginal Deaths in Custody noted the efficacy of having Aboriginal communities involved in determining, planning and implementing local community service orders: recommendations 109–115.
^[18] However, in Mabo v Queensland (No.2) (1992: 44-5), Brennan J noted that Indigenous traditions will be observed in so far as they do not fracture the ‘skeleton’ of the common law, and as an ‘act of state’, the High Court could not challenge state sovereignty because it would threaten the courts of the state. See a critique of this position in Anthony (2009).
^[19] Sutherland (2002) states that Canadian Aboriginal justice programs also do not threaten a western worldview, instead they have the effect of replicating it based on their limited jurisdiction.
^[20] Numerous studies have pointed to the benefits of being on Country for Indigenous people in terms of their mental wellbeing (Hinton et al 2015; Burgess et al 2015).