USQ Law Society Law Review
Tracy Bowen
Winter 2021
theoretically based.6 The application of the values of therapeutic jurisprudence, in theory at least, improves not only the experience of the individual within the court process but is also integral to improving and/or instilling respect for it;7 these outcomes are achieved by outlining how legal systems can ‘be adapted to better meet the needs of those coming into contact with them’.8 It should be noted that despite the objectives upon which therapeutic jurisprudence is based, and the good intentions of those that practice its principles, the ‘actual practices may not correspond to aspirations’.9 This author suggests that employing therapeutic justice in an attempt to produce restorative justice will only be successful where the Australian Indigenous community is involved in the recognition of laws that are pertinent to their traditional cultures as opposed to attempting to mitigate the damage of colonisation by assuaging the harm of the same solely with enlarged discretion in the Indigenous Sentencing Courts.
III
HISTORY
Marchetti and Daly note that the first Indigenous Sentencing Court was assembled in South Australia in 1999, with most Australian States following suit within the ensuing seven years.10 Despite differences in their establishment these courts seek to ensure improved cultural appropriateness, and to involve Indigenous Australians in court practices.11 These problem solving courts employ the principles of therapeutic jurisprudence to produce a legal effect that, in theory, acknowledges societal issues and attempts to promote the resolution of the same.12 What the societal issues are that underly the demands for the formation of the Indigenous Sentencing Courts and the discretion afforded within them demands further discussion. The overrepresentation of Indigenous Australians in prisons coupled with the ‘recognition that existing justice system processes were ineffective in preventing crime or in promoting the rehabilitation of Indigenous offenders’13 were key to the formation of the Indigenous Sentencing Courts. This author questions the effectiveness of the Indigenous Sentencing Courts given that Aboriginal and Torres Strait Islander (‘ATSI’) persons still account for more than a quarter of the total prison population in Australian prisons;14 given that the Royal Commission into Aboriginal Deaths in Custody was based upon ATSI peoples representing fourteen percent of the prison population, the employ of enlarged discretion within the
6
Michael King, 'What can mainstream courts learn from problem-solving courts?' (2007) 32(2) Alternative Law Journal 91, 91 ('What can mainstream courts learn from problem-solving courts?') citing Kate Auty, ‘We teach all hearts to break: but can we mend them? Therapeutic jurisprudence and Aboriginal Sentencing Courts’ (2007) Special Series (1) Murdoch University Electronic Journal of Law 101. 7 Tom R Tyler, ‘The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings’ (1992) 46(2) SMU Law Review 433. 8 Elena Marchetti and Janet Ransley, ‘Applying the Critical Lens to Judicial Officers and Legal Practitioners Involved in Sentencing Indigenous Offenders: Will Anyone or Anything Do?’ (2014) 37(1) University of New South Wales Law Review 1, 4. 9 Marchetti and Daly (n 3) 418. 10 Ibid 416. 11 Ibid 415. 12 King, 'What can mainstream courts learn from problem-solving courts?' (n 6) 91. 13 King, ‘Judging, judicial values and judicial conduct in problem-solving courts’ (n 2) 138. 14 Australian Bureau of Statistics, Prisoners in Australia (Web Page) <https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/latest-release>.
102
