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 Alfred (Response, responsibility and renewal: Canada’s truth and reconciliation journey. Aboriginal Healing Foundation, Ottawa: 179–187, 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.
Thalia would like to thank Alison Whittaker for her editing and thoughtful comments.
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Notes
- 1.
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).
- 2.
For example, Aboriginal Protection Act 1869 (Vic) s6; Aborigines Protection Act 1909 (NSW) s9; Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) s19.
- 3.
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 2011–2012, Indigenous prisoners were 13 times more likely to be serving time in community corrections than non-Indigenous prisoners (Australian Institute of Criminology 2014).
- 4.
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) s104A). However, there are major restrictions that limit the receipt of this information, including the fulfilment of certain procedural requirements (s104A), and excluding any information relating to cultural background or customary law to mitigate or aggravate a sentence (Crimes Act 1914 (Cth) ss16A–AA). The latter provision originally required the suspension of the Racial Discrimination Act 1975 (Cth) to allow its passage.
- 5.
Eg, Fernando (1992); R v Minor (1992); Fuller-Cust (2002).
- 6.
Eg Fernando (1992); Munda (2013).
- 7.
- 8.
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.
- 9.
An accepted fact that does not require additional information because of its reliability.
- 10.
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).
- 11.
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).
- 12.
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.
- 13.
Legislation supporting Indigenous sentencing courts include the Magistrates’ Court Act 1989 (Vic) s4D, the Criminal Procedure Act 1986 (NSW) s348, and the Penalties and Sentences Act 1992 (Qld) s9(2)(p).
- 14.
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).
- 15.
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.
- 16.
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.
- 17.
However, in Mabo v Queensland (No.2) (1992: 44–45), 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).
- 18.
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.
- 19.
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Anthony, T. (2016). The Limits of Reconciliation in Criminal Sentencing. In: Maddison, S., Clark, T., de Costa, R. (eds) The Limits of Settler Colonial Reconciliation. Springer, Singapore. https://doi.org/10.1007/978-981-10-2654-6_15
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