USQ Law Society Law Review
Fatema Nazari
Winter 2021
Courts have some rudiments in common, the latter has dissimilar purposes.7 These courts have broader goals and they aim to accomplish a ‘cultural and political transformation of the law’8 which does not particularly constitute an element of therapeutic jurisprudence.
II
INDIGENOUS SENTENCING COURTS IN AUSTRALIA
During the 1990s, several new courts and justice practices such as Indigenous Sentencing Courts, specialist and problem-solving courts developed in Australia.9 In Queensland, for example, the Murri Courts were formed through the amendments to the Sentencing and Penalties Act 1992 (Q1d). The rise of these courts and practices resulted from social movements that voiced for more humanitarian and effective responses to individuals caught up in the criminal procedures. The development of such courts demonstrates a notion of therapeutic jurisprudence. Conversely, the Indigenous Sentencing Courts arose to:10 (1) address the key recommendations of the Royal Commission into Aboriginal Deaths in Custody, particularly, on reducing Indigenous incarceration, and on increasing the input of Indigenous people in the justice system as court staff or advisors; (2) reduce the over-representation of Indigenous people in the criminal justice system; and (3) accompany the Justice Agreements made throughout Australia between state governments and Indigenous organisations.’ The over-representation of Indigenous people in prison in Australia has been increasing in recent decades and far exceeds non-Indigenous imprisonment rates.11 The unavailability of suitable programs and fewer prospects for rehabilitation may explain and become a contributing factor to recidivism rates. Indigenous people have been deprived of access to the same programs and services that are offered in Australian justice system in comparison with non-Indigenous people for a manifold of reasons which include the absence of non-custodial sentencing options; services for Aboriginal victims of domestic violence and sexual abuse; and programs for counselling.12 Rationally, these circumstances called for the rise of courts particular to Indigenous community. The initial objectives of these courts were to make court processes more ‘culturally appropriate’ and to increase the participation of Indigenous people such as the offender, their support persons and other Indigenous community members in the court process.13 These objects were then illustrated through legislation in States and Territories. These guidelines proposed to involve indigenous community in the sentencing process and increase 7
Elena Marchetti and Kathleen Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29 Sydney Law Review 415, 419 (‘Jurisprudential Model’). 8 Ibid 415. 9 Ibid 416. See also 423. 10 Ibid 422. 11 Chris Cunneen, ‘Sentencing, Punishment and Indigenous People in Australia’ (2018) 3(1) Journal of Global Indigeneity. (‘Cunneen’). 12 Ibid 8. 13 Jurisprudential Model (n 7) 432-435.
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