The focus of this book is on the use and impact of Australian Indigenous 1 sentencing courts in responding to Indigenous partner violence . These courts have been in operation in Australia since 1999, the first having been established by a magistrate in South Australia who sought to improve court communication and understanding, and trust in the criminal justice system for Indigenous people (Daly and Marchetti 2012). Some courts are under threat due to cuts in government funding and penal populism which pushes governments to support ātough on crime ā policies that result in more offenders 2 being on remand or receiving prison sentences as opposed to community-based orders. Getting tougher on crime contradicts the ethos of Indigenous sentencing courts , which target offenders at risk of imprisonment . The focus of the courts is on making the sentencing process more culturally appropriate and sensitive by including Elders and Community Representatives in the discussion that takes place during the sentencing hearing. Community members, magistrates and lawyers involved with the Indigenous sentencing courts have seen what these courts can do and despite cut-backs in government funding in some jurisdiction, have continued their commitment and support of such processes to safeguard the continuance of the courts. Indigenous sentencing courts seem to strike a chord with Indigenous Australians who have been involved with their operation either as Elders, Community Representatives , offenders or victims . 3 They see the courts as empowering their people and communities through giving them a voice and showing them respect .
How Indigenous sentencing courts work in sentencing Indigenous offenders convicted of domestic and family violence offences has not been the focus of evaluations or much of the research (other than my own) that has been conducted of the courts. This book will be the first to consider how the transformation of a sentencing process into one that better reflects Indigenous cultural values and knowledges can improve outcomes for both victims and offenders of Indigenous partner violence . No other work has done this, despite the publication of a number of books that have questioned the role of the criminal justice system in addressing partner violence (Goodmark 2018; Hamby 2014; McGillivray and Comaskey 1999), books that have discussed Indigenous domestic and family violence (Jarrett 2013; Kimm 2004) or books that have considered the efficacy of innovative justice responses in addressing Indigenous criminal offending and sentencing (Anthony 2013; Bennett 2016; Dickson-Gilmore and La Prairie 2005; Proulx 2003). This is the first book to examine the adaptation of a formal sentencing process to make it more culturally meaningful when responding to Indigenous partner violence , to gauge victim and offender views about how the court process has affected their lives and relationships, and to elicit their views of violence within their communities. In particular, the questions this book addresses are: What aspects of the sentencing process are most important in influencing a change in attitude and behaviour of Indigenous offenders who repeatedly engage in abusive behaviour towards their partner? What types of justice processes better meet the relationship, rehabilitative and safety needs of Indigenous partner violence offenders and their victims ?
My interest in this research started around 2002, when the first Murri Court was established in Queensland by the then Chief Magistrate, Diane Fingleton . I had known of the South Australian Nunga Courts and had been researching the extent to which the Royal Commission into Aboriginal Deaths in Custody inquiry had considered the experiences of Indigenous females. How the mainstream criminal court system affected Indigenous Australians, particularly Indigenous females was a question I knew needed further research. Therefore, when the Indigenous sentencing courts started appearing around the country, I found myself wanting to know whether they were truly offering Indigenous Australians a more just and fair sentencing process . While familiarising myself with the courts and learning more about their operation , it became clear that not all courts dealt with domestic and family violence offences in the same way. The use of Australian Indigenous sentencing courts for domestic and family violence offences has been supported and encouraged by many key players and community members involved with the courts; however, in Victoria, breach of domestic and family violence intervention orders was excluded at the outset because the conflict surrounding such offences was thought to be at odds with the collaborative ethos of the courts (Harris 2006). Despite this exclusion, domestic and family violence offences managed to occasionally be sentenced in the Koori Courts if charged as substantive assault-related offences. The Victorian standpoint was (and still is) aligned with the views of a number of feminist scholars and domestic and family violence victim advocates who prefer a more punitive and conventional criminal justice response to such offending. The need to protect victims from further victimisation and ensure that gendered violence is recognised as a crime are the main reasons why some feminist scholars and victim advocates resist the use of innovative justice processes for such matters (Presser and Gaarder 2000; Stubbs 2004). Concerns have also been raised about the dangers of utilising processes that involve some form of community input, because it is feared that community participants will be more concerned with the marginalised position of an offender or supporting an offenderās version of events rather than ensuring the protection of a victim (Coker 2002; Daly 2008; McGillivray and Comaskey 1999; Pranis 2002).
It was with this knowledge and understanding that during a telephone conversation with Magistrate Bevan Manthey in 2006, while he was based in Mount Isa, I developed the idea of researching whether the use of Indigenous sentencing courts for partner violence offenders resulted in ābetterā outcomes for both offenders and victims . Magistrate Manthey had been explaining the background of the establishment of the Murri Court in Mount Isa and how most of the offences heard in that court at the time were related to domestic and family violence offending. Knowing that in Victoria , the Koori Courts at that time chose not to deal with such matters, I wondered whether the presence of Elders and Community Representatives could influence offenders to change and whether victims who attended the hearings felt safe enough to speak honestly about their situation. So many questions were raised by the divergent approaches adopted by the different Indigenous sentencing courts . My interest in this area culminated in applying for an Australian Research Council Discovery Project grant with Professor Kathleen Daly and Dr. Jackie Huggins in 2008, which ended up being funded in 2009 together with an Australian Research Fellowship award. This was the beginning, for me, of a research journey that is still continuing to this day, since my research continues to confirm that solving the problem of domestic and family violence in Indigenous communities will require a rethinking of not only the ways laws and policies are framed, but also of the ways in which Indigenous-focused programs are evaluated. I believe that we need to take a different approach when it comes to domestic and family violence offending in Indigenous communities and that consulting with and listening to respected members of the community, as well as to victims and offenders, is absolutely crucial.
The process of colonisation has been described as having attempted to ādefine the Indigenous people out of existenceā (Davies 2002: 274). The manner in which Captain Cook took over Australia after his arrival in 1788 implied the land was āterra nullius ā, which meant that under international law , āsettlementā by an outsider could occur because there were no previous inhabitants recognised as owning the land. By virtue of Cookās actions, the laws, culture and land tenure of Indigenous Australians was extinguished. In 1992, the application of terra nullius to Australia was declared a legal fiction in Mabo v Queensland (1992) 175 CLR 1 (Mabo) by the High Courtās creation of ānative titleā. Many have argued, however, that in substance the Mabo decision has done little to further the recognition of Indigenous sovereignty and to further their right to self-determination , including the right to appropriately participate in decision making in all areas of the law and justice processes. Because of this we need to be mindful of how we address domestic and family violence in Indigenous communities. It is not enough to adopt a mainstream, western approach (Blagg 2002). Distrust of the criminal justice system and the recognition that mainstream criminal justice processes do not take account of Indigenous visions of justice are two of the main reasons mainstream sentencing processes are thought to be unsuitable for sentencing Indigenous domestic and family violence offenders (Behrendt 2003; Nancarrow 2006; Robertson 2000). Non-conventional justice processes, which involve community input and a greater degree of victim and offender participation , are viewed as offering opportunities for recognising the marginalisation and disadvantage experienced by Indigenous males, for addressing the consequences of the enduring impact of colonisation , and for offering the potential for an approach that seeks family healing as opposed to punitive sanctions (Blagg 2002).
Australian Indigenous adults make up 27 per cent of the national prison population but only 2 per cent of the overall national population. This vast over-representation has been described as a ānation...
