Specialist Aboriginal and Torres Strait Islander sentencing courts

Recommendation 10–2            Where needed, state and territory governments should establish specialist Aboriginal and Torres Strait Islander sentencing courts. These courts should incorporate individualised case management, wraparound services, and be culturally competent, culturally safe and culturally appropriate.

Recommendation 10–3            Relevant Aboriginal Torres Strait Islander organisations should play a central role in the design, implementation and evaluation of specialist Aboriginal and Torres Strait Islander sentencing courts.

10.30  Criminal offences are divided into two categories: summary and indictable offences. Summary offences are heard in the lower courts (Local or Magistrates courts), whereas indictable offences are generally heard in District/County or Supreme courts. Together, these courts are referred to as ‘mainstream’ courts, and hear the majority of criminal cases prosecuted in all Australian jurisdictions.

10.31  For Aboriginal and Torres Strait Islander peoples, mainstream courts can be inaccessible or alienating. Specialist Aboriginal and Torres Strait Islander sentencing courts were established against the background of ‘the sense of powerlessness and alienation felt by many Aboriginal people caught up in the criminal justice system’ revealed by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC).[56] Such courts ‘emphasise the importance of giving aboriginal people a meaningful say in the decisions that affect their everyday lives’.[57]

10.32  The Office of Crime Statistics and Research (SA) described the alienation and disconnection of Aboriginal and Torres Strait Islander defendants as follows:

The overwhelming view that emerged… was that Aboriginal people mistrusted the justice system, including the courts. They felt that they had limited input into the judicial process generally and sentencing deliberations specifically. They also saw the courts as culturally alienating, isolating and unwelcoming to community and family groups. It was clear that Aboriginal people found aspects of the Australian legal system difficult to understand[58]

10.33  The Australasian Institute of Judicial Administration suggests that the process of some specialist Aboriginal and Torres Strait Islander sentencing courts promote concepts such as validation, respect and self-determination. The establishment of such courts ‘demonstrate respect for Indigenous culture and the Elders who are its authority figures. Their processes, collaborative in nature, promote the resolution of underlying problems that have brought individual offenders to court’.[59]

10.34  A 2010 evaluation of Murri Courts in Queensland observed its ‘considerable success’ in improving relationships between Aboriginal and Torres Strait Islander communities and Queensland Magistrates Courts.[60] The study found an increase in appearance rates, an increase in opportunity for those appearing to be linked up with rehabilitative services,[61] and that the initiative was ‘highly valued’ among Aboriginal and Torres Strait Islander community stakeholders.[62]

10.35  The ALRC acknowledges that specialist courts are more resource intensive than mainstream courts.[63] Participants in specialist courts may have to appear multiple times over an extended period (due to case management and judicial monitoring);[64] and treatment and community resource providers are an obligatory component of many specialist courts.[65] However, for the reasons set out above, and because of the complex needs that many Aboriginal and Torres Strait Islander defendants face, the ALRC recommends that, where needed, state and territory governments establish (and continue to support) lower level specialist Aboriginal and Torres Strait Islander sentencing courts. Stakeholders expressed strong support for this recommendation.[66] Submissions reiterated the need to establish such courts in regional areas.[67] Kingsford Legal Centre submitted, for example, that ‘the effectiveness of specialist courts … is impeded by their… high level of concentration in metropolitan areas’.[68]

10.36  While such courts have historically existed in all jurisdictions except Tasmania, their establishment and operation ‘has been neither easy nor inevitable’.[69] State and territory governments have taken the view that ‘reducing recidivism was the main rationale for the use of specialist Aboriginal courts’.[70] For example, currently, there are no specialist Aboriginal sentencing courts in the NT or WA. WA saw the abolition of two specialist Aboriginal sentencing courts in 2015, both following evaluations of the courts that found that recidivism either did not significantly reduce, or because it in fact increased.[71] In January 2015, the Barndimalgu Court—a specialist Aboriginal family violence court—was abolished[72] following a 2014 evaluation that found that while rates of reoffending were lower, the difference was not statistically significant.[73] The Kalgoorlie Community Court was abolished following an evaluation that found that recidivism rates were higher than in mainstream courts. In Queensland, although they have since been re-established, Murri courts were abolished in 2012 on the basis that they did not reduce recidivism rates.[74]

10.37  This approach to evaluating specialist Aboriginal and Torres Strait Islander courts can be quite a blunt approach. Recidivism is only one of a number of aims for such courts, including increased attendance rates, and ‘providing a better and more culturally relevant sentencing process’.[75] Most of the other aims have been achieved to some extent.[76]

Key elements

10.38  Specialist courts, aim to be inclusive and culturally appropriate. They seek to directly engage people who appear before them, to provide individualised case management, and to address underlying issues in culturally appropriate ways,[77] including by having Elders participate in the sentencing discussion.[78]

10.39  Such courts should:

  • involve active participation by the defendant and the community;
  • provide individualised case management for the defendant and wraparound services that address criminogenic factors;
  • be culturally appropriate and competent; and
  • have its design, implementation and evaluation led by relevant Aboriginal and Torres Strait Islander organisations.

Active participation

10.40  Specialist courts aim to increase active participation through the inclusion of key community members, such as Elders, and the use of plain English to ensure that processes and requirements imposed by the court are well understood by the person appearing.[79]

10.41  The Koori Courts in Victoria have a legislated purpose of ‘ensuring greater participation of the Aboriginal community in the sentencing process’.[80] The legislative aims of NSW Circle Sentencing include increased participation of Aboriginal offenders, victims, and community members in sentencing processes, and to improve community confidence in sentencing processes.[81]

10.42  Such participation has also been found to correlate with high satisfaction levels by users, and greater engagement with the system.[82]

Individualised case management of the defendant and availability of wraparound services

10.43  As discussed above, a number of evaluations of specialist Aboriginal and Torres Strait Islander sentencing courts suggest that these courts may have limited short-term success in reducing reoffending. Bennett argues that these findings should be unsurprising, stating:

As a number of the studies have observed, the Aboriginal Courts generally do not have integrated pre- or post-sentence programs to address issues frequently related to Aboriginal offending (anger management, mental health, alcohol and substance abuse). [83]

10.44   He also stated that ‘the need for a broader approach combining the Aboriginal Court process with rehabilitative programs to address the major causes of offending has been recommended by a number of studies’.[84]

10.45  For example, the 2010 study into the Murri Court considered such an approach crucial to meaningfully address reoffending, stating:

Realistically, for the Murri Court to have any impact on reoffending (while not moving away from the philosophy of involving Indigenous community representatives in the sentencing process), strategies are required to enhance the capacity of rehabilitative programs to address those factors recognised as being associated with the disproportionate rate of offending among Indigenous offenders.[85]

10.46  The NSW Bar Association made similar points regarding circle sentencing in NSW:

whilst circle sentencing gives Aboriginal and Torres Strait Islander people direct involvement in the sentencing of Indigenous offenders… such involvement by itself does not necessarily lead to a reduction in reoffending. Specialist Aboriginal and Torres Strait Islander courts must also have available to them specialist programs, a capacity for continued court monitoring after sentence and the resources to conduct drug testing.[86]

10.47  The NSW Bar Association submitted that the proposed District Court of NSW Koori Court (the Walama Court) was a good example of a court operating under a model incorporating individualised case management and wraparound services. Under this model, a program would be determined for the defendant during a ‘sentencing conversation’ that includes Elders and a Koori Court officer, among others. In addition to a cultural component, and the content of the program itself (which can incorporate referral to services), it is proposed that the Court would be empowered to engage in individualised case management through the incorporation of the following elements:

  • release of the defendant on a suspended sentence to undertake the program;
  • phases of low, medium and high supervision, including breath-testing, urinalysis and progress appearances in the Koori Court; and
  • sanctions for breach of program requirements.[87]

10.48  While not a lower level court, the ALRC supports the establishment of the Walama Court.

10.49  The Neighbourhood Justice Centre (NJC) operating in Victoria also provides a useful model.[88] The NJC is a Victorian Magistrates’ Court of first instance established in 2007, and is Australia’s first community justice centre.[89] The NJC is co-located with treatment and support services and seeks to resolve disputes by ‘addressing the underlying causes of harmful behaviour and tackling social disadvantage’.[90]

10.50  Bennett sounded a note of caution around the operation of specialist Aboriginal and Torres Strait Islander sentencing courts, outlining that the incorporation of pre-sentence programs requires an active judicial role in ongoing monitoring to ensure compliance with diversion programs. He cautioned that the adoption of a problem-solving model into specialist Aboriginal and Torres Strait Islander courts requires a careful balance between this additional monitoring role and ensuring that Elders and the community remain central to the process and that it continues to be an Aboriginal and Torres Strait Islander process. The ALRC considers that these issues demonstrate the importance of ensuring that the design of such courts are led by Aboriginal and Torres Strait Islander organisations.

Culturally appropriate and competent

10.51  A 2013 study concluded that a culturally appropriate court process was ‘critical when providing a justice response for Aboriginal and Torres Strait Islander people’.[91] The Kimberley Community Legal Centre provided some useful guidance in determining what is culturally appropriate, cautioning against making assumptions about ‘what is culturally appropriate or likely to be wanted or supported’ by Aboriginal and Torres Strait Islander people in an area.[92] It submitted that ‘models such as specialist courts… have lower prospects of being successful unless they are worked through and developed for the particular, local context’.[93] This requires that the design, implementation and evaluation of these courts be led by relevant Aboriginal and Torres Strait organisations.

10.52  When considering how courts might be appropriately evaluated, Eleni Marchetti emphasised the importance of ensuring that Aboriginal and Torres Strait Islander values and knowledge informs evaluations of specialist Aboriginal and Torres Strait Islander sentencing courts.[94] The use of ‘positivist methods of evaluation’ mean that existing evaluations of specialist Aboriginal and Torres Strait Islander sentencing courts ‘often focus on measures and criteria that are difficult to apply within a non-mainstream setting and may not reflect Indigenous cultural values and aspirations’.[95]