USQ Law Society Law Review
Rebekah Scown
Winter 2021
approaches. In relation to judicial and advocacy practice, Michael King emphasises ‘selfdetermination, the promotion of procedural justice values and practices based on health compliance principles.’7
II
INDIGENOUS SENTENCING COURTS
Indigenous Sentencing Courts were established in 1999 in South Australia and operate in most states and territories around Australia.8 Indigenous sentencing courts sit within the framework of the main-stream courts and use Australian criminal laws and procedures during sentencing. There is no consideration or application of Indigenous customary laws.9 Where mainstream courts primarily focus on legal questions, applying legal principles and outcomes such as a sentence or judgement, specialist courts ‘promote the resolution of underlaying problems such as substance abuse or domestic violence.’10 Indigenous sentencing courts are considered specialist courts. In Indigenous sentencing courts, the ‘problem’ context is ‘the failure of the criminal justice system to accommodate the needs of Aboriginal people and to ensure that they are fairly treated within that system.’11
II
DISCRETION OF JUDGES
As stated earlier, the roles and behaviour of legal actors in a legal context has an impact on the psychological well-being or emotional life of a person affected by the legal system.12 In Indigenous Sentencing Courts, the role of the magistrate goes beyond that of a traditionally impassive and independent arbiter13 considering the evidence and legal arguments presented by prosecutor and defence lawyers.14 To facilitate dialogue, rather than an elevated bench the judicial officers sit in a circle or at an oval table with the offender, their support person (if one has attended), Elders, the prosecutor, defence lawyer,15 corrective services officer and members of the Community Justice Group. The magistrate interacts with the offender, support people, Elders and provided with detailed information about the offender and their unique circumstances. There is an expectation for the magistrate to draw on skills and strategies to engage Indigenous offenders, ‘make them involved in the process, and more open to
7
Ibid. Elena Marchetti, ‘Nothing Works? A Meta-Review of Indigenous Sentencing Court Evaluations’ (2017) 28(3) Current Issues in Criminal Justice 257, 260. 9 Elena Marchetti and Kathleen Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29 Sydney Law Review 415, 420. 10 Michael King, ‘What Can Mainstream Courts Learn from Problem-Solving Courts?’ (2007) 32(2) Alternative Law Journal 91, 91. 11 Western Australian Law Reform Commission, Aboriginal Customary Laws (Discussion Paper No 94, December 2005) 146 quoted in Elena Marchetti and Kathleen Daly (n 10) 429. 12 David Wexler (n 1) 126. 13 James Duffy, ‘Problem-Solving Courts, Therapeutic Jurisprudence and the Constitution: If Two Is Company, Is Three a Crowd?’ 35 Melbourne University Law Review 394, 394. 14 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 Journal 1, 19. 15 Ibid 261. 8
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