Indigenous sentencing courts: Distinct from or derivative of Therapeutic Jurisprudence?

This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.

By Alyssa Cabry

Introduction

The Koori Court is an Indigenous sentencing court operating within the Magistrates’ Court Division of Victoria under the direction of the Victorian Aboriginal Justice Agreement (VAJA) and formalised by the Magistrates’ Court Act 1989 (Vic) (‘the Act’). The Koori Court emerged as a key recommendation of the VAJA, itself a response to the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), as a means of addressing the “subjection, alienation and exclusion” experienced by Indigenous people in the criminal justice system. Through the “formal Indigenous participation” of Elders and Indigenous court officers, the Koori Court seeks to “incorporat[e] Indigenous knowledge and modes of social control into the sentencing process” to create a more culturally appropriate and effective forum for sentencing Indigenous offenders.

With these objectives in mind, the question as to whether Indigenous sentencing courts more generally are distinct from or derivative of therapeutic jurisprudence (TJ) takes on an enhanced significance. This essay will utilise observations made from the Swan Hill Koori Court and the literature to demonstrate that, although bearing similarities with the processes and outcomes of TJ, Indigenous sentencing courts are ultimately derived from a participatory and politically-charged jurisprudence.

Observations of Swan Hill Koori Court

The Swan Hill Koori Court opened in June 2008 and operates on the land of the Wamba Wamba Nation. As stipulated by section 4F of the Act, all those coming before the Court are Aboriginal, have pled guilty to an offence (other than a sexual assault or family violence offence) within the jurisdiction of the Magistrates’ Court and have consented to their matter being heard before the Koori Court. The following observations were made from shadowing Magistrate King at Swan Hill Koori Court and are interspersed with commentary explaining the rationale and therapeutic benefits of the Koori Court.

Setting and Context

The first observations made when entering the court room is that of the large oval table in the centre of the room, the presence of Indigenous artworks on the walls and the inclusion of the Aboriginal and Torres Strait Islander flags alongside the Australian flag. The intention behind the physical composition of the room is to clearly distinguish the Koori Court from the typical Anglo-Australian court room which represents a legal system that has both perpetuated and legitimised injustices against Indigenous people.  This seating arrangement “reverse-colonis[es] the court space” by displacing the Magistrate from their typical position at the elevated Bench, and placing all participants at the same level. Magistrate King’s reference to the “Learned Elder’s” reflected the cross-culture hybridity of the Koori Court process by acknowledging their knowledge and seniority within an Anglo-Australian legal context. Furthermore, the Elder’s use of their Wamba Wamba language in the opening and closing of each court session establishes a distinctly Koori context. This is an example of the practical application of section 4D(6) of the Act which allows each Koori Court to regulate its own procedures.

Following the welcome to country, Magistrate King provided an explanation of the Koori Court before beginning the pre-hearing introductions. These introductions canvassed the entire room, including those in the public gallery seated behind the table, and had the effect of involving the wider community in the proceedings. This practice establishes a level of familiarity unheard of in the mainstream Magistrates’ Court and is reflective of sections 4D(4)-(5) of the Act which requires the Koori Court to be conducted in an informal and comprehensible manner. This process also establishes the relational context of the offender to those in the court room. In doing so, this process “draws to some degree on inclusive conflict resolution practices in Indigenous cultures”, where social pressure is used to ensure conformity with accepted standards of behaviour.[1]

Participants

Seated around the table were Magistrate King, the Elders (who were sat on either side of the Magistrate), the Corrections Victoria Officer, the Prosecution, the Defence Counsel, the Offender and the Koori Court Officer. This composition differed for judicial monitoring matters, where the Corrections Officer and Prosecution were not required. The role of the Koori Court Officer is unique to the Koori Court Division. This role requires extensive knowledge of the community and “a high-level of mediation skills… at the intersection of Aboriginal, non-Aboriginal and court-based cultures”. Not at the table, but involved in proceedings, were support workers from the Mallee District Aboriginal Services. Their inclusion exemplifies the collaborative and interdisciplinary approach taken by the Koori Court, with the emphasis on Koori-specific services “positively reinforc[ing] a sense of Aboriginal people having an interest in ensuring defendants take responsibility for their actions”.

The offender’s family was seated directly behind the table and all other participants were seated around the periphery of the room. The presence, and active involvement, of all these people in the court room creates a more informal and culturally receptive environment. This helps to remove the legalistic overtones that typically accompany mainstream court processes. In particular, the setting gives Indigenous participants the opportunity to provide the Magistrate with the context of the “social, economic and cultural complexities” surrounding the offender’s behaviour. Further, the increased Indigenous participation challenges the “assume[d] position of whiteness” of the Anglo-Australian legal system by displacing traditional legal practices and decentralising the non-Indigenous participants. As a result, non-Indigenous participants must become “more reflexive about previously rigid roles [by] adopting and adapting” to an Indigenous-controlled space.

Discussion

The case of a young man from Bendigo appearing for judicial monitoring will be used to explain the general procedure and practices of the Koori Court and demonstrate its unique position as a site of cultural empowerment. Judicial monitoring matters generally began with Magistrate King asking the offender for an appraisal of their progress under their Community Corrections Order (CCO) since their last hearing. The tone of this discussion was informed by the progress report prepared by the Koori Court Officer and was referred to throughout the hearing. The offender’s answer would often trigger further questions, either from Magistrate King or the Elders. The ensuing discussion at times involved the entire court room and was subject to respectful and constructive interruptions for the purposes of clarification or re-direction.

In this instance, the young man had failed to make any progress under his order. As a result, the discussion began with an admonishment from the Elders and directed questions as to the man’s knowledge and connection, or lack thereof, to his father’s Dja Dja Wurrung country. It was made clear that his lack of local Koori connections in Swan Hill had made his failure to progress under his CCO, whilst living on Wamba Wamba country, particularly disrespectful. One of the principal objectives of this discussion is to “more closely integrate the offender into [their] community and to engender a feeling of shame”.[2] The disappointment expressed by the Elders was thus intended to shame and instil a sense of cultural accountability and responsibility into an otherwise disconnected young man. By the tears in his eyes, it was evident that this was achieved.

Whilst the shaming of an offender has the potential to be destructive and stigmatising when carried out by the “distant legal authority” of the Magistrate, the more immediate “moral authority” of the Elders imparts a more “positive and constructive notion of shame”. The effectiveness of shame when it comes from an Elder is a result of their enhanced authority. This stems from their status in the community and is free from “the stigma attached to the perceived instruments of oppression”, namely judicial officers and the police. Furthermore, by placing his actions into the context of his community and identity, the relative anonymity and “moral disengagement” which would otherwise have been experienced by the young man in a mainstream court was dismantled. Having “gotten through” to him, the Elders proceeded to voice their empathetic understanding regarding feelings of disconnect by alluding to their own experiences of removal. The hearing ended with the promise to get the young man in contact with an Elder from Dja Dja Wurrung country to help him establish familial connections and develop a Koori support network for him in Bendigo. This discussion highlighted the invaluable ways in which the Koori Court generates cultural empowerment through recognising and valuing cultural knowledge and connection.

Criticisms of the Koori Court

The criticisms of the Koori Court, and Indigenous sentencing courts more generally, can broadly be divided into two categories. The first concerns the perception that the Koori Court dispenses “soft justice”, unfairly favours Indigenous offenders and is unjustifiably resource and time-intensive. The second concerns the role of the Koori Court in furthering the tokenistic subjugation of Indigenous people within the dominant legal system.

The perception that the Koori Court is a softer alternative is rejected by judicial officers working in the Division. They stress that the enhanced meaning and shame which the discussion brings about results in a far more impactful and difficult sentencing process than that experienced in the mainstream system. Following the RCIADIC’s recognition of the particularly damaging effects of incarceration on Indigenous people, prison sentences are now viewed as an option of last resort. Nonetheless, the perception of leniency is unfounded as the sentencing options available to the Magistrate sitting in Koori Court remain unchanged and exercisable at their discretion.

The argument that the creation of specialist sentencing courts for Indigenous offenders affords a “discriminatory largesse” is also dismissed by judicial officers. Bryant (a former Magistrate of the Shepparton Koori Court) notes that, against the historical backdrop of Indigenous over-representation in the criminal justice system, “to treat everyone equal in this context simply serves to compound inequality”. Auty (a key proponent in establishing, and former Magistrate of, the Shepparton Koori Court) also explains that the establishment of the Koori Court Division was partly in response to a lack of “culturally sound options” for Indigenous people. In contrast, other non-Indigenous communities “had already been provided with diversion and other programs which worked in a non-Aboriginal cultural environment”.

Furthermore, the criticism regarding the resource and time-intensive nature of the Koori Court could be levelled at any specialist sentencing court when compared to the mainstream system. Whilst quantitative evaluations have found that the Koori Court has not noticeably improved recidivism rates, these evaluations have been criticised. In particular, it has been suggested that these evaluations fail to consider the positive qualitative effects and “broader, non-utilitarian aims… [in] promoting more culturally appropriate processes, greater community cohesion and increased Indigenous participation in decision-making”.[3] Indeed, as Marchetti argues, the focus on the quantitative outcomes of the Koori Court “does not properly capture the Indigenous-focused and community-building aims and goals of the programs” and is indicative of a general failure to apply an Indigenous paradigm when evaluating Indigenous sentencing courts.

The criticisms regarding the role of the Koori Court as representing the tokenistic subjugation of Indigenous people are less easily dismissed. Blagg argues that because the Koori Court exists within, and is thus subordinate to, the dominant legal system it merely serves to “reinforce existing structural inequalities and injustices” by distracting from the ongoing effects of colonisation.[4] This view is supported by the intention of key proponents in the establishment of the Koori Court Division, such as former Attorney-General Rob Hulls who sought to “give Koori communities… ownership in the system”, rather than ownership of, or through a system entirely distinct from, the dominant legal system. Thus, the participation of Indigenous people can be viewed as one of subordination through incorporation into the dominant legal system. However, as Marchetti notes, Indigenous sentencing courts operate “within a legal structure and system that will not permit Indigenous sovereignty and self-determination”. Consequently, the Koori Court operates as a “cross-cultural hybrid criminal justice process”, which seeks to enhance Indigenous participation and incorporate the “views and sensibilities of the Indigenous domain” into the sentencing process. This creates and enables access to a more culturally appropriate sentencing process. The incorporation of the Indigenous domain gives the Koori Court the transformative potential to “bend and change the dominant perspective of ‘white law’” from within the dominant legal system. Notwithstanding its criticisms, in seeking to achieve “Koori-community based outcome[s]”, the Koori Court is a more responsive and culturally appropriate advancement on mainstream sentencing processes.[5]

Jurisprudential basis of Indigenous Sentencing Courts

There is disagreement in the literature as to whether the jurisprudential basis of Indigenous sentencing courts is distinct from or derivative of TJ and its associated practices, including other specialist sentencing courts. Far from a semantic debate, this distinction points to the broader role of Indigenous sentencing courts within a colonial Anglo-Australian legal context.

King and Auty argue that Indigenous sentencing courts are inherently therapeutic because of their processes and outcomes. In King’s summation they “encourage respect for court process; involve key players in the court system…; encourage offenders to take responsibility for their actions; and attempt to promote healing and rehabilitation of offenders”.[6] In Auty’s view it is the “layers of trust, commitment and transparency” underpinning Indigenous sentencing courts which indicate their “ground[ing] in, and then generating, therapeutic outcomes”. Marchetti also recognises that Indigenous sentencing courts share empirical similarities with other therapeutically-minded sentencing practices.

Despite this, Marchetti and Daly maintain that Indigenous sentencing courts have “a distinct theoretical and jurisprudential basis, which cannot simply be derived from or subsumed by” other non-adversarial justice practices, on account of the inherently political dimension which they occupy. They argue that by “reignit[ing] and strengthen[ing] cultural recognition and empowerment” from within the dominant Anglo-Australian legal system, Indigenous sentencing courts attempt the “cultural and political transformation of the law” in a way that is distinct from other specialist courts. Auty appears to support this distinction in stressing that the Koori Court is “its own creature, responsive to a dialogue with, and reflective of, the culture of Victorian Aboriginal people” and not merely operating on “a continuum of other mainstream innovations”. The mainstream innovations which Auty refers to are problem-oriented courts, such as drug and mental health courts, which are principally concerned with “address[ing] the individual criminogenic needs of an offender”.

However, Indigenous sentencing courts do not construe Indigeneity as a problem in need of solving. Rather, they seek to address the problems faced by Indigenous people, not as a result of their Indigeneity, but as a consequence of colonisation. Thus, in creating a forum where the “shared colonial legacy” provides “explanatory context for individual behaviour”, Indigenous sentencing courts take on a distinctly political, and potentially transformative, dimension. Marchetti and Daly describe this dimension as a “culturally appropriate and politically-charged participatory jurisprudence”. Thus, in seeking to achieve broader societal change by addressing the ongoing effects of colonisation, Indigenous sentencing courts have an inherently political and transformative jurisprudential basis.

CONCLUSION

Observations made from shadowing Magistrate King in the Swan Hill Koori Court demonstrated that, notwithstanding the broader criticisms surrounding Indigenous sentencing courts, the practices and processes of the Koori Court can generate therapeutic and culturally empowering outcomes. Despite this and other empirical similarities with therapeutically-minded sentencing practices, Indigenous sentencing courts are jurisprudentially distinct from TJ and its associated practices and ultimately derive from a participatory, politically-charged and potentially transformative jurisprudence.

About Alyssa Cabry
Alyssa Cabry is currently undertaking a Law/Arts degree at Monash University and has a keen interest in how the law can be used as a tool for achieving social justice, particularly in the context of Indigenous people’s interaction with and experiences of the Australian legal system.

[1] Larissa Behrendt and Loretta Kelly, ‘Resolving Indigenous Disputes: Land Conflict and Beyond’ (The Federation Press, 2008) 91.

[2] Michael King et al, ‘Non-Adversarial Justice’ (The Federation Press, 2nd ed, 2014) 208.

[3] Ibid, 208-209.

[4] Ibid, 215.

[5] Ibid, 215.

[6] Ibid, 207.

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