Abstract
Involving Indigenous Elders or community representatives in sentencing has been an informal aspect of the criminal justice process in Australia for some time. However, such practices have never been as far reaching nor have they had the formal recognition and support of governments as is the case with Indigenous sentencing courts in the third decade of the twenty-first century. The establishment of such courts reflects an attempt and desire to correct the harmful and discriminatory nature of the criminal court process for Aboriginal and Torres Strait Islander people in Australia’s criminal justice system. This chapter begins by describing the evolution of the courts and the debates surrounding the drivers of over-incarceration of First Nations people in Australia. It then explains how resistance to changing conventional sentencing considerations and practices have restricted the extent to which courts have been successful in shifting colonial power in sentencing.
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Legislation
Criminal Law (Sentencing) Act 1988 (SA).
Magistrates’ Court (Koori Court) Act 2002 (Vic).
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Appendices
Practitioner Perspective: Murri Court
I have been a magistrate since the late 1990s, mostly working in Southeast Queensland, but working in the Cairns Murri Court in Far North Queensland since 2020. In Cairns, there are much larger numbers of Aboriginal and Torres Strait Islander people before the court and in custody compared to Southeast Queensland. Each day in Cairns, the court receives a list of all defendants (adults and children/young people) in watch-house custody. Almost all defendants appearing before the court in custody are Aboriginal or Torres Strait Islander.
Murri Court is best understood by visiting it: it is experiential. It is the shared human experience that enables the therapeutic processes to be successful. Everyone benefits from Murri Court, not just the defendants and their families but also the Elders who get to make a difference and create real change. Also, lawyers and prosecutors who believe in the principles of therapeutic jurisprudence can work in a court practicing those principles. Court staff get to work in an uplifting and positive court room; as well as everyone else, including government and non-government agencies that provide support to defendants. These agencies get to fulfil their purpose of providing support and facilitating change.
Murri Court has dual processes. The first is the court process that case-manages a matter. The second process is the supports and services provided or organised by the Elders. In Queensland, the Elders form and become members of a Community Justice Group (CJG) that assists the Murri Court and the defendants.
The Court Process
Some of the court processes are procedural to case-manage the matter but there are also processes that promote and support the therapeutic aims of the court. In Cairns. the court room is a standard courtroom with some Indigenous art on the walls. Police prosecutors do not wear a uniform, however at the request of the Elders, the magistrate wears a robe. Importantly, seated next to the magistrate is a ‘Bench Elder’: in Cairns, this is always the same person and has been with the CJG (Community Justice Group [CJG] are a group of dedicated local Aboriginal and Torres Strait Islander people who are elders or respected persons in the community) since its inception. She is highly respected by the court and the community.
Murri Court aims to be culturally safe and less alienating than the mainstream court process. At the beginning of court everyone is welcomed to Murri Court and the Bench Elder speaks first, acknowledging the local people and introducing herself. I then introduce myself including sharing I am Aboriginal and where I am from. I am Butchulla from K’Gari (Fraser Island). Each person in the court room then introduces themselves in any way they feel comfortable: the Elders; lawyers; prosecutors; court staff; community corrections staff; support agencies staff; defendant’s and their families and supporters; and anyone else in the court.
The Murri Court and Youth Murri Court sits in Cairns on two Fridays of each month. What is extremely powerful is that all the Elders are in court on each of the sitting days and are there to support every adult and child defendant. The Murri Courts aim to support defendants in dealing with the problems that underlie their offending. The Elders provide the court an initial ‘entry report’ setting out some of the defendant’s personal and cultural circumstances and then provide—before the mention of each matter—Murri Court Progress Notes with individualised information about what the person is dealing with and what support services, if any, the defendant is engaged with.
However, Murri Court is a conversation. The contents of the report form the basis of the conversation in court. When I speak to a defendant, I also confer with the ‘Bench Elder’ to ask if there was anything else she wishes to say about the defendant. Importantly, as all the Elders are at also at court, the individual Elder who primarily works with and supports the defendant and his or her family can also speak to the court about the defendant. The defendant and his or her family can also speak. Everyone in court involved in the defendant’s matter can contribute to the conversation. This includes the defence lawyer, prosecutor, and any of the agencies especially those who work directly with the defendant. Often words of encouragement or acknowledgement or support are said but there might also be words of warning or caution.
Amaroo Community Justice Group
The CJG is made up of local Aboriginal and Torres Strait Islander people who are Elders or Respected Persons. In Cairns, the CJG is Amaroo Aboriginal and Torres Strait Islander CJG (Amaroo CJG). They are a dedicated group of Elders who work together from rented premises where they have offices, meeting rooms and a kitchen and conference room where larger meetings and lunches are held.
When working with children, the elders also work with the child’s family. If a child has been removed from their family by the Department of Child Safety, the elders still work with the family. If this is not possible, then they work with the child and the child’s case worker.
The defendants (adults and children) must meet with the Elders at the Amaroo offices every Monday.1 Usually, one elder is assigned to work with the same Defendant each week. This continuity and reliability of support from the same Elder is beneficial and good relationships are formed. Also, to stop the need for defendants and their families having to attend various services, the Elders invite service providers to come to their offices on the Monday when the defendants and young people and their families are there.
The Elders have formed excellent working relationships with various service providers to provide supports including housing, Centrelink, medical, resumes and job applications. Elders work with an education specialist when supporting a child to return to school, working out the best school for the child to attend then working with the child, the child’s family and the school when the child returns to school. The Elders also have strong connections with a civil construction training company with whom courses can be undertaken with the opportunity of employment at the end.
Noticing that some defendants had to walk long distances to attend their Monday meeting, including at times in harsh conditions of North Queensland heat or rain, the elders decided to provide transport for defendants and the children and their families. The elder who is providing the transport takes the opportunity travelling in the car to connect with the defendants, children and their families.
The lack of transport led the Amaroo elders to initiate the provision of bikes. Elders are often working with men aged 25 to 40 years. To get a bike they must attend regularly for a period of about six weeks a meeting with the Elders and the Alcohol and Other Drugs Service (AODS), or whichever service they have been referred to. Bikes given to adult defendants enable them to transport themselves to Monday meetings have the freedom of transport more generally and transport to be able to get a job. The Elders tell me that the giving of a bike to a defendant can lift the adult defendant’s self-esteem and sense of wellbeing knowing someone cares about them. The bikes are well looked after.
Bikes have also been given to children. With children there may be conditions to getting a bike such as visiting the Elders with their family, not running out of the house and wandering the streets and not offending. Thomas was 15 years old and lived about a 45 minutes walk from the Amaroo offices. The Elders spoke with him, and it was agreed he could get a bike. The following week he rode to his meeting with the elders, but he looked close to tears. He told the elders he had once stolen a bike, used it and thrown it away. He said he felt “really bad” for what he had done, knowing if someone stole his bike he would be upset. The bike was valuable in providing transport and giving him responsibility. It also had the advantage of causing him to experience empathy and some insight into the impact of his behaviour on victims.
Successes
There are a variety of outcomes for adults and children who are supported by the Amaroo Elders. There are good outcomes. Here are two stories.
The first was Dennis, an adult. The Elders who met with him said he was in a “vicious alcohol cycle” and he was “absolutely ready to give up”, not caring if he lived or died. The elders were upset to see him so lost. They spoke with him, invited him to the Monday lunch to join everyone at Amaroo. When he left, they gave him a $30 food voucher. They reported that he came back the following Monday and that he was totally transformed. They said someone cared about him which gave him hope. Things moved quickly for Dennis and, with the Elders’ support, by his third visit he was ready to go into an Indigenous residential rehabilitation at Shanty Creek. The Elders supported him, including the application process to get a place at Shanty Creek. Dennis successfully completed a nine-month rehabilitation programme. Dennis has stayed in touch with the Elders, has stopped drinking, and no longer appears in Murri Court.
The second story is of a child returning to school. Many of the children in Murri Court have disengaged from school. It is always a goal of the Elders, if possible, to get the child back to school. David was one of six children, and his family were homeless. He had dropped out of school and was hanging out with children who were offending. The Elders supported David’s mother helping to secure a house for her and all the children. However, as children are only before the Murri Court for a short time, averaging about six weeks, the Elders continued to support David’s mother even after David left the Youth Murri Court. Housing stability for the family supported David and he returned to school. The elders provided him with uniforms and books and worked with him, his new school and his family to keep him in school.
There are many measures of success in Murri Court, but the elders say their biggest successes are getting children back to school and supporting adults and older children find work.
Sentencing
Murri Court gives the court a real opportunity to consider a just sentence. Even though courts can receive submissions for individual offenders about trauma unique to their Aboriginality, such submissions are less common in mainstream courts. I am usually told where they are from and if they have children or if they have a job. I might also receive a general submission: for example, “the offender was exposed to alcohol use and domestic violence as a child”.
The sentencing considerations are not changed for the Murri Court. It allows the court to receive proper submissions upon which the court can sentence. In Queensland, sentencing legislation provides that when sentencing the court can consider submissions made by a CJG. Submissions can include the offender’s relationship to the community, any cultural considerations or any considerations relating to programmes and services established for offenders in the community in which the CJG participates. The time the adult defendant or child has spent in Murri Court allows the CJG to make detailed submissions unique to that person, resulting in a fairer and just process.
The other benefit is that a sentencing option for the court is a probation or a community service order. People may be unable to complete their orders if they face difficult circumstances such as homelessness, addiction, cognitive impairment or domestic violence. However, with the support given by the Elders, combined with the adult or child’s progress through Murri Court, they are far more capable and likely to complete community-based court orders.
They are now ‘probation ready’. They also continue to have the support of the Elders even though they have left Murri Court, and this supports them in successfully completing orders such as probation or community service.
Conclusion
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC, 1991b, Vol. 2 part C) found “that a multitude of factors, both historical and contemporary, interact to cause Aboriginal people to be seriously over-represented in custody” and that the fundamental causes are not located within the criminal justice system and instead “the most significant contributing factor is the disadvantaged and unequal position aboriginal people find themselves in society – socially economically and culturally” (RCIADIC, 1991a, Vol 1, 1.7.1.) However, the systems are entangled and criminal justice reform is necessary and urgent.
The Australian Law Reform Commission’s Pathways to Justice Report (2017, p. 26) Recommendation 10-2 provides:
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.
The Cairns Murri Court follows this recommendation. The success of this court is because its’ therapeutic processes are almost entirely designed and managed by the local Aboriginal and Torres Strait Islander Elders. Of course, the court’s effectiveness is greatly enhanced by a judicial officer who believes in the court and its’ processes. Murri Court respects Indigenous culture and the authority of the Elders. First-hand, I have seen the transformative nature of the court—not only in reducing recidivism but also in empowering the adults and children who may for the first time in their life felt validated and respected.
Murri Court works because the Elders care about the people. As one of the female elders said to me: “We tell them, ‘We’re blackfellas too, we know what it’s like to struggle, to have nothing’. We let them know that we love them, we support them and we don’t judge them”.
Note
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1.
People who cannot meet on the Monday mornings for example because of a set work commitment will meet with the Elders at other times.
References
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Royal Commission into Aboriginal Deaths in Custody (RCIADIC). (1991a). Royal Commission into Aboriginal Deaths in Custody: National Report, Vols. 1. Australian Government Publishing Service. http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol1/17.html
Royal Commission into Aboriginal Deaths in Custody (RCIADIC). (1991b). Royal Commission into Aboriginal Deaths in Custody: National Report, Vols. 2, Part C. Australian Government Publishing Service. http://www.austlii.edu.au/au/other/IndigLRes/rciadic/national/vol2/3.html
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Marchetti, E., Ryle, L.M. (2022). Indigenous Sentencing Courts. In: Camilleri, M., Harkness, A. (eds) Australian Courts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-19063-6_10
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