Herrman, Mia --- "Indigenous Sentencing Court Performance Review Methodology: Applying Restorative Justice Principles To Supplement Recidivism Emphasis" [2021] UNSWLawJlStuS 7; (2021) UNSWLJ Student Series No 21-7

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INDIGENOUS SENTENCING COURT PERFORMANCE REVIEW METHODOLOGY: APPLYING RESTORATIVE JUSTICE PRINCIPLES TO SUPPLEMENT RECIDIVISM EMPHASIS

MIA HERRMAN

I INTRODUCTION

Over the past two decades, Indigenous sentencing courts (ISCs) have surfaced throughout Australia to configure sentencing processes for less serious criminal offences. ISCs operate external to traditional judicial processes and resultantly do not substitute lower courts. ISCs support Anglo-Australian justice systems by conveying supplementary evidence about circumstantial considerations for defendants or offenders, while empowering Indigenous community engagement in justice processes. Indigenous sentencing is a practice prefaced upon individualised justice, which affirms critical participatory practices with Indigenous Elders and Respected Persons. Specialised justice arrangements that maintain community consultation incline sustained consent throughout sentencing procedures.^[1] ISCs consider circumstantial indicators including the origins of offending and subsequent community impacts. Post-colonial outcomes are additionally acknowledged which encourages systemic injustice decline, through culturally appropriate rehabilitation frameworks. Community participation throughout ISCs significantly qualifies procedural arrangements that can directly enhance reconciliatory community prospects.

In Australia, a deficiency of evaluations that gauge practical impacts of Indigenous-centred criminal justice schemes confine access to justice. While Australia is arguably a global leader in applied ISC innovation,^[2] other colonised nations are ahead when considering ‘research from an indigenous paradigm’.^[3] This essay reviews the research methodologies in which researchers and policy-makers quantify and apply to determine the effectiveness of ISCs. Thorough examination of the processes through which data is gathered, assessed and subsequent collection omissions, propose that inadequate datasets for ISC review can confine progress to accurately measure and recognise detrimental systemic injustice. Qualitative reports consistently determine that recidivism data is disproportionately considered as the key performance indicator to determine the value of ISCs.^[4] Quantitative research margins do not adequately corroborate qualitative findings that ISCs significantly promote cultural sensitivity, collaborative civic participation and reconciliation support. Advanced implementation of restorative justice principles is required to support the reconfiguration of evaluation methodology and subsequent datasets. This aims to challenge systemic injustices by recognising more specialised, qualitative community impacts upon ISC application. Otherwise, misinformed ‘ineffective’ determinations limit public funding and political traction for Indigenous courts, which enable distinct access to culturally appropriate justice processes for Indigenous communities. However, restorative justice implementation does not necessarily rectify certain systemic incompatibility between ISC objectives and the Anglo-Australian justice system.

II REVIEWING THE COMPATIBILITY BETWEEN RESTORATIVE JUSTICE AND INDIGENOUS SENTENCING COURTS

ISCs notably integrate principles and practices that derive from restorative justice and therapeutic jurisprudence as specialised processes address community participation beyond conventional court initiatives.^[5] Marchetti and Daly’s investigation demonstrates how ISCs offer ‘innovative justice’ by encompassing Indigenous knowledge and specialised methods of community governance.^[6] They itemise standardised conditions across Australian jurisdictions that enable ISC operation: The offender is Indigenous and either entered a plea agreement or was found guilty; the offender consented to having the case heard in an ISC; the offence in question transpired in the court’s geographic jurisdiction; and the charge is generally heard in a local court (narrow exemptions apply).^[7] This threshold does not automatically facilitate restorative justice organisation as a limited sum of minor offenders resultantly meet requirements, which confines restorative justice accessibility. Defendants who have been wrongly accused or do not otherwise opt to plead guilty are excluded from this justice mechanism, as are convicted offenders who have been previously sentenced. It should be acknowledged that a sect of Indigenous offenders is very likely to consider falsely entering a guilty plea to conditionally access the ISC, which perpetuates over-representation and subsequent systemic injustice. Therefore, ISCs do not appear to fall within the complete ambit of restorative justice as Court objectives and operation are somewhat confined by conventional Anglo-Australian conceptions of justice.

A Prevailing Systemic Injustice Throughout Indigenous Sentencing Organisation

Indigenous involvement in sentencing courts is directed by Anglo-Australian legal systems and controls. Consequently, ISC participants lack substantive autonomy throughout court procedures due to the function of the magistrate. Harry Blagg depicts ISCs as a problematic liminal area between Anglo-Australian justice and Aboriginal justice.^[8] ISCs are frequently facilitated by mainstream courts, which disputes the restorative value of Indigenous community spaces to ease systemic injustice. Sentencing standards must comply with statutory directions for penalties, which dissuades certain Indigenous participatory outcomes. In New South Wales (NSW), South Australia and the Northern Territory, improved participation and assistance for victims is equally specified as an objective of the Courts.^[9] However, victims are not present at a majority of court hearings and when they are, access to support is often extremely limited or non-existent.^[10] Further, very few review processes have evaluated the effectiveness of ISCs in relation to systemic injustice through restorative justice models.^[11] Chris Cunneen subsequently argues that the Anglo-Australian legal system appropriates Aboriginal justice through ISCs.^[12] This criticism acknowledges that ISCs do not apply an operative Indigenous legal charter, but offer a designated platform for Indigenous participation in the Anglo-Australian criminal justice system. Limitations upon ISCs’ prescribed interaction with the Anglo-Australian criminal justice system demonstrate that this sentencing practice may superficially invoke restorative justice outcomes. However, this should not undermine specialised ISC mechanisms that are excluded throughout normative retributive criminal justice practices. ISCs can subsequently relieve harm from systemic injustice through: Open dialogue; emotional support; forgiveness devices; and inclusive community engagement.^[13] A broader restoration of Indigenous trust in public systems will significantly enable these outcomes. Genuine ISC success consequently urges systemic reform to enable interconnected public infrastructure that is directed by Indigenous-centred values and consent.

Community restoration is supported by the facilitation of offenders’ and victims’ cohesive relationship with their communities. This process relies on participants’ trust in the facilitation process, which can compel comprehensive restorative justice implementation. Trust is particularly challenging to cultivate when post-colonial dependence on the Anglo-Australian legal system disputes the sincere Indigenous agency.^[14] In the Northern Territory, members of Indigenous communities who have been involved in the establishment and operation of Community Courts are cognisant of their limited capacity to express Indigenous law and broadly respond to community justice concerns.^[15] Adam Crawford’s criticism of Nils Christie’s simplification of the dynamic between an impacted community and the State applies, as autonomous ISC participation risks destabilising the Anglo-Australian justice system’s asymmetrical power structure.^[16] Law and policy frameworks must implement wider, operative support for Indigenous leadership throughout sentencing and broader justice processes. This requires enactment and sufficient funding for appropriate restorative justice implementation, which collectively alleviates systemic injustice.

B Culturally Appropriate Sentencing Practices

Despite ISC operation in Anglo-Australian courts, restorative justice principles distinguish specialised procedures through significant inclusion of community input to support sustainable outcomes for the victim, offender and adjacent community. Qualitative studies featuring restorative justice principles advise that criminal justice and Indigenous community cohesion objectives are inherently interrelated, thus ISC implementation systemically supports community outcomes.^[17] Evaluations determine that ISCs optimise the delivery of culturally suitable sentencing processes.^[18] Defendants’ and victims’ holistic circumstances are recognised, which assists inclusive procedural participation and fairness throughout sentencing processes.^[19] ISCs commonly utilise a magistrate to facilitate proceedings, seated at parallel view to the offender/s, victim/s, various support people and Elders or Respected Persons as community delegates. Procedure is subsequently guided by emotionally sensitive frameworks that encourage candid and nonjudgmental dialogue in a safe space. Improved discourse and collective involvement progress deeper empathy and acceptance of responsibility amid all parties. Direct communication between the magistrate and the offender was found to stimulate greater sentencing acceptance by offenders.^[20] Magistrates suggested that additional time for sentencing procedures enabled deeper understanding for offenders’ personal circumstances, which optimised fairness throughout sentencing determinations.^[21] Offenders reported that circumstantial considerations were better recognised during sentencing, which prompted offenders to suggest that sentencing procedures were reasonable and fair.^[22] Participation by victims correspondingly supported forgiveness and/or emotional relief – this constructive shared experience advances systemic reconciliation.^[23] Indigenous court users’ subjective circumstances are acknowledged, while Magistrates’ decision-making factors are qualitatively refined. ISCs resultantly encourage collective rehabilitation, as the victim and offender experience are both received in a safe and open communication forum.

Potas et al explain that, ‘Facing one’s own community – respected people who have known the offender his or her entire life – is the most powerful aspect of this process’.^[24] Elders or Respected Persons exemplify an instrumental presence towards accountability acceptance among victims, offenders and the broader community.^[25] Don Weatherburn reports that circle sentencing in NSW provides, ‘Aboriginal Elders direct involvement in the sentencing of Aboriginal offenders [this] encourages offenders to critically reflect upon their behaviour’.^[26] However, the Nowra Circle outcomes have been hindered when offenders lack a suitable or acquainted relationship with participating Elders, as one offender claimed that Elders excessively ‘ganged up’ on him during the proceedings.^[27]

Comprehensive community participation establishes a bipartite impact – it promotes offenders’ acceptance of accountability to their community, which resultantly restores communities’ committed support for offenders.^[28] Community engagement with sentencing processes widely shames offenders, which subsequently prompts acceptance of responsibility. Restorative justice principles subsequently mitigate systemic injustice through Indigenous sentencing procedures, by acknowledging offenders’ circumstances that influence transgressions and the multifaceted impacts towards victims and surrounding communities.^[29] This process considers Reintegrative Shaming Theory as each offender’s ‘confrontation’ with the relative victim directs mutual respect and care, to optimise reintegration prospects.^[30] Community dialogue fosters honest, emotionally sensitive dialogue, which empowers offenders to reform behaviour and resume community participation.^[31] The Cultural and Indigenous Research Centre Australia (CIRCA) subsequently determined that ISCs encourage collective justice, reconciliation and broader independence for Indigenous communities, which collectively alleviates systemic injustice for Indigenous communities.^[32]

III EXAMINING MEASURES THAT DETERMINE THE EFFECTIVENESS OF INDIGENOUS SENTENCING COURTS

In all Australian jurisdictions, court guidelines, statutory requirements and supplementary materials that direct courts processes affirm objects towards cultural sensitivity and reduced recidivism.^[33] However, examinations and impact analyses narrowly deliberate ISC outcomes across Australia by exclusively evaluating the extent to which courts have: Lessened recidivism and incarceration rates; enhanced court attendance; and delivered culturally sensitive outcomes for Indigenous offenders, victims and communities.^[34] Any review that considers a realisation of court aims is somewhat confined by courts’ ‘fairly broad’ aims that ‘may appear aspirational and ambitious’, which frequently reference proposed decreases in recidivism and incarceration indicators.^[35]

A Isolated Recidivism Review Implications

Evaluations of NSW Circle Sentencing;^[36] Victoria’s Koori Courts;^[37] Murri Courts in Brisbane;^[38] Western Australia’s Aboriginal Sentencing Court of Kalgoorlie;^[39] Northern Territory Community Courts;^[40] and Nunga Courts in South Australia have suggested that ISCs do not empirically reduce recidivism. Outcomes expose the distinct practices and frameworks of each respective ISC.^[41] However, scholars have urged that ISC success should not be exclusively determined by recidivism rates as this restricted dataset directs ISCs to exclusively consider deterrence.^[42] Recidivism studies have been widely panned for: Implementing inconsistent comparative methodologies; limited community check-ins; and facilitating programs founded on deficient recidivism data or in absence of any comparative qualification.^[43] Consolidated research evaluation is subsequently complicated when ISC assessment outcomes do not apply data that reflects comprehensive conditions, which can fortify systemic injustice.

Political actionability and funding determinations are additionally confined by a disproportionate application of recidivism data. Programs facilitated by ISCs risk termination when positive restorative outcomes do not directly generate recidivism reduction. For example, the Queensland Murri Courts were defunded in 2012 until the 2016 induction of a Labor Government.^[44] Political agendas are resultantly substantiated by misinformed datasets, which diminish ongoing Indigenous community momentum, while purporting systemic injustice. The Western Australian Kalgoorlie Community Court was similarly defunded in 2015, solely due to evidence that ISCs did not decrease recidivism.^[45] Restorative justice implementation is required to guide an authentic and rounded extrapolation of data and impact studies. This proposed operation better targets systemic injustice, upon a collaborative implementation of systems that recognise and facilitate Indigenous aspirations and wider autonomy.

B Quantitative Findings on Recidivism

Quantitative reports on NSW Circle Sentencing, Victoria’s Koori Courts and Murri Courts in Brisbane signify that ISCs have moderately addressed offence deterrence by decreasing recidivism.^[46] However, Fitzgerald and Marchetti consistently identify numerous limitations with aforementioned findings.^[47] Studies exclude suitable comparative control groups, do not facilitate sufficient follow up durations and apply defective court statistics.^[48] To remedy these research limitations, Fitzgerald completed a statistical examination on circle sentencing in NSW, which reviewed whether circle sentencing tangibly reduced the regularity of offending, the duration before re-offending and/or lessened the seriousness of offences. It was determined that circle sentencing did not impact these matters.^[49] However, Fitzgerald compared offenders from ‘outside of Sydney’ with offenders sentenced by a Circle in local court from Brewarrina, Nowra and Dubbo.^[50] Consequently, Fitzgerald’s investigation did not utilise a suitable control group comparison, as analysis did not consider specialised community features including local offending data and rehabilitative support mechanisms.

An appropriate controlled study ought to instead compare findings between offenders sentenced by an Indigenous court and other offenders within the same Indigenous community, sentenced by a conventional court, to optimise cultural and geographic coherence.^[51] This is primarily relevant as a reliable identification of systemic injustice requires fair consideration for sentencing orders in the context of accessible support to each Indigenous community. Quantitative exploration correspondingly reduces attention to multifaceted configurations regarding offenders’ conduct and behavioural development, which can be recognised by qualitative investigation. Qualitative evidence suggests that ISCs systemically enforce culturally appropriate governance within Indigenous communities.^[52]

C Qualitative Findings on Recidivism

Interviews with ISC users have recognised favourable outcomes towards recidivism reduction. Examination by the Cultural and Indigenous Research Centre Australia established that circle sentencing is widely seen to discourage reoffending and has a ‘dramatic influence on offenders beyond reoffending’, relative to family relationships, employment and substance abuse.^[53] Daly and Proietti-Scifoni’s evaluation of the Nowra Circle in NSW discourages narrow exploration of recidivism in quantitative findings.^[54] This considers that repeat offending is motivated by multifaceted factors that often differ between offenders. Daly and Proietti-Scifoni established that recidivism reduction after Nowra Circle participation was contingent upon an intricate array of issues including: Offenders’ stances on prison; age; commitment to responsible alcohol consumption; and cessation of illicit drug use.^[55] Daly and Proietti-Scifoni maintain that desistance requires sentencing processes that adapt to each offender’s needs with enduring implementation.^[56] Nowra participants generally favoured the Circle’s open communication sharing, informality, promotion of Indigenous agency and productive censuring arrangements.^[57] Victims additionally commended their participatory role as a means to support emotional recovery.^[58] A selection of evidence on problem-solving courts affirms the constructive outcomes amid court participants and judges where respect is mutually fostered.^[59] Participants largely accepted the Murri Court model as it sensitively introduced Indigenous communities to the justice system and systemically improved perceptions of sentencing processes. This optimally targeted systemic injustice by addressing Indigenous offenders’ specialised needs, which resultantly dissuaded recidivism more effectively than Magistrates Courts.^[60]

Morgan and Louis concluded that Murri Courts were more inclined to facilitate community reintegration of offenders than conventional courts, by reaffirming connections among offenders and prominent community members.^[61] Collective perceptions of procedural fairness additionally encourage sustainable restorative justice outcomes that empower systemic advancement.^[62] Communities subsequently gain further procedural independence as cultural consciousness is encouraged between Indigenous community members and judicial officials.^[63] Unfortunately, offenders maintained that they did not receive sufficient information about the sentencing practice in preparation, while the circle experience was not accompanied by additional support and follow-up.^[64] It is critical to acknowledge that these circle sentencing studies have adapted specialised hypotheses and research methodologies across different jurisdictions, which can impact the reliability of comparative evaluations and obscure bearings on systemic justice outcomes.

IV ADAPTING INDIGENOUS SENTENCING PROCESSES TO ADDRESS SYSTEMIC INJUSTICE

Key interpretations and guidance materialise from quantitative and qualitative investigation of ISCs throughout Australian jurisdictions. Thalia Anthony and Will Crawford’s review of Community Courts in Warlpiri, Tiwi and Yolnu communities determine that effective court operation is contingent on Indigenous participatory agency and comprehensive cultural suitability.^[65] Remote communities especially require supplementary ISC support through specialised community justice charters.^[66] Blagg argues that positive Indigenous-centred justice procedures require Indigenous direction and inclusion of community legal and organisational mechanisms.^[67] Systemic injustice is resultantly challenged when community participants actively see past an offender’s specific criminal action and apply restorative justice methodology to confine repeat conduct in the community.

A Expanding Indigenous Agency Throughout Sentencing Processes

Qualitative studies urge the importance of collective ISC participants reaffirming connection with the offender.^[68] In small and cohesive Northern Territory Indigenous communities, wider familiarity with offenders assists the Court to delineate the offending context. Deeper connection between ISC participants heightens the degree of shame experienced by offenders.^[69] Offenders are subsequently better equipped to identify the relationship of the penalty to broad community harm. It is critical that the offender perceive ISC processes to include personal participants in the offending context. Restorative justice outcomes can subsequently alleviate systemic recidivism when offenders are motivated to accept a sensitive balance of shame and emotional encouragement.^[70] When community courts were operational, a panel section was established in conference with local Elders and corrections officers, prefaced on comprehensive consent. Community courts’ encouragement of restorative justice schemes was optimised when participants engaged self-directed Indigenous legal advocacy. In the Northern Territory’s Nhulunbuy Community Court, Respected Persons, Raymattja Marika and Barnambi Wunungmurra were critical to the Court’s establishment. They were inducted as Justices of the Peace and joined the Court’s governance panel, which provided ‘a sense of acknowledgment under both systems of law’.^[71] Anthony and Crawford found that magistrates were more confident in community court procedures when panel members were respected within the community.^[72] Systemic injustice reduction in an Indigenous sentencing context requires greater separation from traditional retributive justice schemes to optimise independent restorative processes.

Nonetheless, ISC participation can be assisted by appropriate assurance and support by the presiding magistrate or judge.^[73] Elena Marchetti and Janet Ransley urge the importance of cultural sensitivity training for judicial officers and all court facilitators including legal representatives to optimise participation.^[74] ISCs can cultivate comprehensive sentencing directives that consider Indigenous communities’ diverse conditions.^[75] However, the NSW Aboriginal Justice Advisory Council recognised that successful circle sentencing outcomes require improved adoption of more specialised sentencing orders and practical solutions, to initiate cooperative responsibility throughout sentencing proceedings.^[76] Indigenous courts must be entitled to direct and integrate involvement in local support programs and education, to promote systemic sentencing transformation. This compels sufficient public resource designation for community-based support, consensual supervision and on-going training for all participants.^[77]

V REFINING INDIGENOUS SENTENCING COURT EVALUATION MODELS

To optimally quantify the extent to which traditional review methodology captures ISC objectives, it is important to initially clarify the themes that ISC evaluation has identified. A meta-review of ISC data and impact studies will intend to: clarify analysis of ISC review procedures; expose the source of methodological limitations and subsequent assessment impacts; and synopsise and critically analyse said results. This essay principally urges that ISC review procedures require reform to enable culturally sensitive data capture methodology. Reform ought to confine and supplement Western scientific norms that dominantly depend on a recidivism decline as the central identifier of ‘success’. ISCs operate in a setting that is principally directed by an Anglo-Australian rule-based perception of justice, with extensive retributive emphasis. Normative retributive justice theory inclines broad uncertainty for restorative ideological implementation.^[78] Therefore, support for the continued operation of ISCs ideally requires procedural evaluation that is specialised, meticulous and more frequent than conventional court review processes.^[79] ISCs are likely held to a higher performance standard than other courts, as Anglo-Australian courts widely lack recognised alternatives for trying and sentencing procedures. Reports and assessments of mainstream courts considerably prioritise resource utilisation – this emphasis is problematically transplanted to current ISC evaluation practices.

A Focus on Cost–Benefit Analysis

Jason Payne directed an investigation into varying assessment methodologies for Indigenous courts in Australia. Payne notes that three assessment forms have generally quantified the overall progression of speciality courts.^[80] The initial form is ‘process evaluation’, which measures how a court’s practical operation realises its intended operation. Then, specialty courts encounter ‘outcomes evaluation’, which assesses how effectively a court has realised intended objectives, separate from specific processes applied to realise them.^[81] Lastly, specialty courts typically encounter ‘cost evaluations’, which calculate a court’s operational expenditure.^[82] In this setting, Payne’s assessment categories necessitate greater specialisation and broader exposure to a continuing dialogue with Indigenous community leaders, as literature does not suggest that investigatory follow-up has been sufficiently executed. This indicates the disorganised and intermittent nature of present ISC evaluative schemes, which likely reflects restricted public resource allocation and political interest. Payne resultantly suggests observational limitations, relative to specialist courts in Australia. a majority of schemes that have completed a process, outcomes or cost assessment have not undertaken on-going review.^[83] Subsequent data would be significantly more impactful upon supplementation by longer-term investigations, which could advance findings that consider consistent performance impacts. Moreover, current ISC data lacks sufficient data from sustained research in relation to: Offending patterns; social and health indicators; and drug-use. This current information shortage reduces the reliability of overall evidence that informs effective sentencing outcomes.^[84] Systemic injustice is aggravated throughout ISC operation upon the application of incomplete datasets, as policy proposals are not informed by complete Indigenous community conditions.

B Control Group Comparison Methodology

Objectionable recidivism data is a chronic component of the criminal justice system, which has persistently impacted ISC performance review and subsequent policy. Limitations amid traditional sentencing processes regarding recidivism have principally compelled the development of ‘problem-solving’ courts. These courts attempt to mitigate systemic recidivism through an application of restorative philosophy, which heightens consideration for circumstantial factors surrounding an offence.^[85] ISCs are prone to be partly evaluated on this restorative basis, which can present specialised challenges towards systemic sentencing reform. Comprehensive Indigenous offending provenance is challenged to Australia’s colonial history. Thus, effective restorative justice processes must acknowledge nuanced and enduring community trauma. Vastly specialised community experiences and characteristics challenge the development of a precise yet widely recognised scheme to quantify Indigenous recidivism indicators. As noted, accurate and adaptable data indicators incline appropriate Indigenous consultation throughout ISC systemic review and reform processes.

Payne notes that the most substantial challenge associated with any quantitative assessment of ISCs arises when determining comparative control groups to measure participants and outcomes.^[86] To gauge the connection between an offender’s court appearances and the probability of re-offending, it is important to correlate Indigenous offenders’ criminal records within ISCs and conventional sentencing courts. The Murri Court review was initiated to investigate how effectively the Court was accomplishing its aims, which features recidivism evaluation.^[87] However, the report mainly applied anecdotal data as investigators were not able to compare Murri Court recidivism rates with other Indigenous offenders sentenced in conventional courts, with equivalent prospects of being sentenced for imprisonment, due to a lack of empirical data.^[88] Therefore, a comprehensive ISC evaluative system requires steady designation of public means to ensure consistent operational data collection, which would thoroughly determine the extent of systemic injustice.

C Considering Broader Community Impacts of Indigenous Sentencing Courts

In 2008, the Bureau of Crime Statistics and Research (BOCSAR) conveyed that circle sentencing in NSW did not decrease the occurrence of offending, nor did it extend the duration prior to the subsequent ‘proven’ offence or lessen the seriousness of later offending. This research reviewed reoffending data on the circle sentencing groups in the 15 months prior to the circle and the 15 months following the circle, which applied a comparative control group of Indigenous offenders sentenced in conventional courts.^[89] In 2020, BOCSAR conversely reported that circle sentencing in NSW is associated with lower rates of Indigenous incarceration and recidivism, relative to conventional sentencing processes.^[90] This outcome applied extracts from datasets in NSW BOCSAR’s Reoffending Database and Aboriginal Services Unit between 2005 and 2019.^[91] Reporting accuracy and reliability throughout the 2020 evaluation is notably optimised in relation to 2008 methodology. Extrapolations in 2020 are strengthened by dataset excerpts with prolonged interval ranges and more perceptive qualitative review. BOCSAR reporting contrasts reveal that systemic injustice throughout Indigenous sentencing processes has been partially propagated by the disproportionate application of defective recidivism data.

The limited duration of Indigenous court operation provides that it is simultaneously questionable to presume that community recidivism outcomes can be accurately calculated at present, as long-term systemic inequality and persecution have vastly directed existing Indigenous over-representation. Funding and political support for longitudinal research refines applicable methodology to efficiently measure ISCs, while enabling improved outcomes for cross-jurisdictional consistency. Fitzgerald accepts that the circle sentencing study intended to review a ‘short-term’ impression.^[92] However, Fitzgerald suggests that circle sentencing can in fact maintain recidivism decline through supplementary inclusion of programs including: Drug and alcohol rehabilitation; education and employment support; and cognitive behaviour therapy.^[93] This suggestion essentially advocates that ISC processes ought to further embrace broader intervention and holistic community-mindedness. On the basis that diverse Indigenous stakeholders are consulted and provide consent, Fitzgerald’s advice appears reasonable and achievable, if sufficient government subsidisation enables cooperative facilitation.

Each objective or precipitated ISC outcome will not realistically be given equivalent consideration or influence in any reformed evaluation process. ISC assessments have dubiously integrated consideration for broader public advantage. This is particularly due to the influence of the surrounding political setting in which ISCs function. The Law Reform Commission of Western Australia reviewed the operation of problem-solving courts within its jurisdiction.^[94] The Report claimed that although it is reasonable for judicial officials, legal representatives and other exceptions to alter practices to support participants’ wellbeing, advantages of court intervention schemes are unable to be assessed in relation to participants’ wellbeing. This determination implies that ICSs are not warranted without a tangible induction of outcomes that are simultaneously advantageous for the general public.^[95] Restorative justice is subsequently diminished when individualised support for offenders and victims is conditioned by community-wide assistance – specifically for participants who are responsive to prospects of rehabilitation, or wide Indigenous communities that still face broad systemic inequality. Hence, ISCs are held to a higher threshold to establish political support and funding. These courts are reasonably expected to promote community-wide assistance, while contending with mainstream criminal justice organisation, programs and schemes. Although ISCs are likely to remain within Anglo-Australian criminal justice organisation, unreachable funding thresholds comprehensively stifle prospects towards the reform of ISC evaluation schemes. This outcome resultantly delays access to operative schemes that ease systemic Indigenous injustice.

VI CONCLUSION

It is critical to rebut the presumption that Indigenous justice schemes intuitively introduce restorative justice outcomes that confront systemic injustice.^[96] This misconception denies imperative acknowledgement of distinctions between diverse Indigenous communities and evolving Indigenous perceptions of justice. Cursory ISC acceptance applies arbitrary and generalised determinations, which can restrain genuine restorative justice outcomes. Insufficient consultation with Indigenous communities regarding the progress or burden of restorative justice schemes can further systemic injustice, if programs and research do not prioritise community consent.^[97] In order for ISCs to effectively challenge systemic injustice, the development of reliable and coherent assessment measures requires direct consultation with Indigenous participants and communities. It is uncertain whether Indigenous consultation has been utilised in the methodology development stage amid recent evaluations. Therefore, reporting bodies must formally include and acknowledge Indigenous communities, by empowering Indigenous participation in culturally sensitive evaluations of ISCs, to support the progression of perceptive research methodology.

Restorative justice implementation must additionally recognise distinct ISC operation across jurisdictions and within each State or Territory. Judge Irwin identifies that, ‘No two Murri Courts operate in exactly the same way. This is because they have been developed with the advice of the Elders and Respected Persons to reflect local conditions. It is essential that this continues’.^[98] ISC review fundamentally lacks cohesive comparability to mainstream courts due to innate distinctions within each Indigenous community, in every jurisdiction. This acknowledges that the development of an inclusive, consistent and convincing evaluation model will be immensely complex. Statistical challenges that arise upon inadequate follow-up scheduling and unreliable control group procedures emphasise that frequent and specialised evaluation is essential to accurately oversee ISC development. A systematic and continuous evaluation program could additionally expedite an assessment of ISCs’ aptitude to cultivate sustainable support for all participants and the broader criminal justice system. Potential research approaches should ideally apply reasonable cross/intra-jurisdictional reviews, to accurately qualify whether ISC implementation systemically addresses injustice for all participants, particularly serial offenders.^[99]

VII BIBLIOGRAPHY

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Thomas, Brendan, Circle Sentencing: Involving Aboriginal Communities in the Sentencing Process, (Discussion Paper, New South Wales Aboriginal Justice Advisory Council, 1999)

Tyler, Tom, ‘Public Trust and Confidence in Legal Authorities: What Do Majority and Minority Group Members Want for the Law and Legal Institutions?’ (2001) 19(2) Behavioural Sciences and Law 235

Victims of Crime Support Program in the ACT, Ngambra Circle Sentencing Court: Report on the Pilot Initiative from the Victims of Crime Coordinator (Report, 2004)

Wilson, Shawn, ‘What is Indigenous Research Methodology?’ (2001) 24(2) Canadian Journal of Native Education

Yeong, Steve and Elizabeth Moore, ‘Circle Sentencing, incarceration and recidivism’ Crime and Justice Bulletin: Contemporary Issues in Crime and Justice (No 226, Bureau of Crime Statistics and Research, April 2020)

B Other

The Law Reform Commission of Western Australia, Court Intervention Programs: Consultation Paper, Project No 96 (2008)

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^[1] Kathleen Daly and Elena Marchetti, ‘Innovative Justice Processes: Restorative Justice, Indigenous Justice, and Therapeutic Justice’ in Marinella Marmo, Willem De Lint and Darren Palmer (eds), Crime and Justice: A Guide to Criminology (Lawbook, 4th ed, 2012) 461 (‘Innovative Justice Processes’); Kate Auty, ‘Growing Up the Koori Court (gerund) Shepparton: Development Discourse and Innovation in Courts of Summary Jurisdiction’ (2004) 7(4) Journal of Australian Indigenous Issues 19.

^[2] Elena Marchetti and Riley Downie, ‘Indigenous People and Sentencing Courts in Australia, New Zealand and Canada’ in SM Bucerius and M Tonry (eds), The Oxford Handbook on Ethnicity, Crime and Immigration, (Oxford University Press, 2014) 360–385.

^[3] Shawn Wilson, ‘What is Indigenous Research Methodology?’ (2001) 24(2) Canadian Journal of Native Education 175.

^[4] Elena Marchetti, ‘Nothing Works? A Meta-Review of Indigenous Sentencing Court Evaluations’ (2017) 28(3) Current Issues in Criminal Justice 257.

^[5] Elena Marchetti and Kathleen Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29 Sydney Law Review 414, 429 (‘Indigenous Sentencing Courts’); Arie Freiberg, ‘Problem-Oriented Courts: An Update’ (2005) 14(1) Journal of Judicial Administration 215 (‘Problem-Oriented Courts’).

^[6] Innovative Justice Processes (n 1) 465.

^[7] Indigenous Sentencing Courts (n 3) 421.

^[8] Harry Blagg, ‘Colonial Critique and Critical Criminology: Issues in Aboriginal Law and Aboriginal Violence’ in Thalia Anthony and Chris Cunneen (eds), The Critical Criminology Companion (Hawkins Press, 2008) 140 (‘Colonial Critique and Critical Criminology’).

^[9] Victims of Crime Support Program in the ACT, Ngambra Circle Sentencing Court: Report on the Pilot Initiative from the Victims of Crime Coordinator (Report, 2004) 18.

^[10] Ibid.

^[11] Indigenous Sentencing Courts (n 3) 420-42.

^[12] Chris Cunneen, ‘Understanding Restorative Justice through the Lens of Critical Criminology’ in Thalia Anthony and Chis Cunneen (eds), The Critical Criminology Companion (Hawkins Press, 2008) 293.

^[13] Kathleen Daly and Gitana Proietti-Scifoni, ‘“The Elders Know ... The White Man Don’t Know”: Offenders’ Views of the Nowra Circle Court’ (2011) 7(24) Indigenous Law Bulletin 20 (‘Offenders’ Views of the Nowra Circle Court’).

^[14] Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princetown University Press, 2007) 8.

^[15] Thalia Anthony and Will Crawford, ‘Northern Territory Indigenous Community Sentencing Mechanisms’ (2013) 17(2) Australian Indigenous Law Review 83 (‘Northern Territory Indigenous Community Sentencing Mechanisms’).

^[16] Adam Crawford, ‘The State, Community and Restorative Justice: Heresy, Nostalgia and Butterfly Collecting’, In Restorative justice and the Law (Willan, 2012) 103 (‘The State, Community and Restorative Justice’).

^[17] Mark Harris, ‘A Sentencing Conversation: Evaluation of the Koori Courts Pilot Program’ (2006) Department of Justice Victoria (‘Evaluation of the Koori Courts Pilot Program’); Ivan Potas et al, ‘Sentencing in New South Wales: A Review and Evaluation’ (2003) Sydney Judicial Commission of New South Wales 52 (‘Sentencing in New South Wales’); Cultural & Indigenous Research Centre Australia (CIRCA), Evaluation of Circle Sentencing Program in NSW Attorney General’s Department (Report, 2008) 26 (‘CIRCA’).

^[18] Ibid.

^[19] Ibid.

^[20] CIRCA (n 15) 34; Evaluation of the Koori Courts Pilot Program (n 15).

^[21] Ibid.

^[22] Ibid.

^[23] Sentencing in New South Wales (n 15) 52.

^[24] Ibid.

^[25] CIRCA (n 15) 38; Evaluation of the Koori Courts Pilot Program (n 15); Natalie Parker and Mark Pathe, ‘Report on the Review of the Murri Court’, Department of Justice & Attorney General (Report, 2006) (‘Report on the Review of the Murri Court’); Sentencing in New South Wales (n 15).

^[26] Judge Marshall Irwin, ‘Queensland Murri Court’ (Paper delivered at Law Asia Conference, 31 October 2008, Kuala Lumpur) 10-11 (‘Queensland Murri Court’).

^[27] Offenders’ Views of the Nowra Circle Court (n 11) 18, 20.

^[28] Ibid 19.

^[29] CIRCA (n 15) 38.

^[30] John Braithwaite, ‘Restorative Justice and Responsive Regulation’ (Oxford University Press, 2002).

^[31] Evaluation of the Koori Courts Pilot Program (n 15).

^[32] CIRCA (n 15) 38.

^[33] Indigenous Sentencing Courts (n 3) 440.

^[34] Nigel Stobbs and Geraldine Mackenzie, ‘Evaluating the Performance of Indigenous Sentencing Courts’ (2009) 13(2) Australian Indigenous Law Review 94.

^[35] Ibid.

^[36] CIRCA (n 15); Jacqueline Fitzgerald, ‘Does Circle Sentencing Reduce Aboriginal Offending?’ Crime and Justice Bulletin: Contemporary Issues in Crime and Justice (No 115, Bureau of Crime Statistics and Research, May 2008) (‘Does Circle Sentencing Reduce Aboriginal Offending?’).

^[37] Zoë Dawkins et al, County Koori Court: Final Evaluation Report (Victorian Department of Justice and Clear Horizon Consulting, 27 September 2011) 3; Evaluation of the Koori Courts Pilot Program (n 15).

^[38] Anthony Morgan and Erin Louis, Evaluation of the Queensland Murri Court: Final Report, Technical and Background Paper No 39 (Australian Institute of Criminology, October 2010) (‘Evaluation of the Queensland Murri Court’); Report on the Review of the Murri Court (n 23).

^[39] Heather Aquilina et al, Evaluation of the Aboriginal Sentencing Court of Kalgoorlie: Final Report (Shelby Consulting, 16 October 2009).

^[40] Jenny Blokland, ‘The Northern Territory Experience’ (Paper presented at Australian Institute of Judicial Administration Indigenous Courts Conference at Mildura, 7 September 2007) 11, 16 (‘The Northern Territory Experience’).

^[41] Elena Marchetti, ‘Indigenous Sentencing Courts’ (Indigenous Justice Clearinghouse Research Brief 5, December 2009) 3 (‘Indigenous Justice Clearinghouse Research Brief’).

^[42] Evaluation of the Koori Courts Pilot Program (n 15); Sentencing in New South Wales (n 15); CIRCA (n 15) 26.

^[43] Ibid.

^[44] Tony Moore, ‘Diversionary Courts Fall Victim to Funding Cuts’, Brisbane Times (online, 13 September 2012) <https://www.brisbanetimes.com.au/national/queensland/diversionary-courts-fall-victim-to-funding-cuts-20120912-25sj5.html>; Amanda Banks, ‘Aboriginal Court Gets the Chop’, The West Australian (online, 14 August 2015) <https://thewest.com.au/news/australia/aboriginal-court-gets-the-chop-ng-ya-127355>.

^[45] Ibid.

^[46] Report on the Review of the Murri Court (n 23).

^[47] Does Circle Sentencing Reduce Aboriginal Offending? (n 34) 7; Evaluation of the Queensland Murri Court (n 36) 4.

^[48] Ibid.

^[49] Does Circle Sentencing Reduce Aboriginal Offending? (n 34) 7.

^[50] Ibid 3.

^[51] Offenders’ Views of the Nowra Circle Court (n 11) 19.

^[52] Allan Borowski, ‘In Courtroom 7 - The Children’s Koori Court at Work: Findings From an Evaluation’ (2011) 55(7) International Journal of Offender Therapy and Comparative Criminology 1124.

^[53] CIRCA (n 15) 61.

^[54] Offenders’ Views of the Nowra Circle Court (n 11) 18, 20.

^[55] Ibid 20.

^[56] Ibid 17.

^[57] Ibid 20.

^[58] Sentencing in New South Wales (n 15) 18, 20.

^[59] Carrie Petrucci, ‘Respect as a Component in the Judge–Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic Jurisprudence’ (2002) 38 Criminal Law Bulletin 263.

^[60] Report on the Review of the Murri Court (n 23) 23.

^[61] Evaluation of the Queensland Murri Court (n 36) 124.

^[62] CIRCA (n 15).

^[63] Evaluation of the Queensland Murri Court (n 36) 124.

^[64] Sentencing in New South Wales (n 15) 19.

^[65] Northern Territory Indigenous Community Sentencing Mechanisms (n 13) 80.

^[66] Janet Hunt and Diane Smith, ‘Indigenous Community Governance Project: Year Two Research Findings’ (Working Paper 36, Centre for Aboriginal Economic Policy Research, 2007) 24; James Gurrwanngu Gaykamangu, ‘Ngarra Law: Aboriginal Customary Law from Arnhem Land’ (2012) 2 Northern Territory Law Journal 236; George Pascoe Gaymarani, ‘An Introduction to the Ngarra Law of Arnhem Land’ (2011) 1 Northern Territory Law Journal 236.

^[67] Colonial Critique and Critical Criminology (n 6) 140.

^[68] Offenders’ Views of the Nowra Circle Court (n 11) 19.

^[69] Northern Territory Indigenous Community Sentencing Mechanisms (n 13) 93.

^[70] Sentencing in New South Wales (n 15) 7.

^[71] The Northern Territory Experience (n 38) 13.

^[72] Ibid.

^[73] Northern Territory Indigenous Community Sentencing Mechanisms (n 13).

^[74] 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] UNSWLawJl 1; (2014) 37(1) University of New South Wales Law Journal 1,15.

^[75] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5, recommendations 109-115.

^[76] Brendan Thomas, Circle Sentencing: Involving Aboriginal Communities in the Sentencing Process, (Discussion Paper, New South Wales Aboriginal Justice Advisory Council, 1999).

^[77] Thalia Anthony and Harry Blagg, ‘Addressing the “Crime Problem” of the Northern Territory Intervention: Alternate Paths to Regulating Minor Driving Offences in Remote Indigenous Communities’ (Report to the Criminology Research Council, CRC 38/09-10, 2012) 14.

^[78] The State, Community and Restorative Justice (n 14) 109.

^[79] Tom Tyler, ‘Public Trust and Confidence in Legal Authorities: What Do Majority and Minority Group Members Want for the Law and Legal Institutions?’ (2001) 19(2) Behavioural Sciences and Law 215.

^[80] Jason Payne, ‘Specialty Courts: Current Issues and Future Prosects’ (2006) 137 Trends and Issues in Criminal Justice 6.

^[81] Jason Payne, Speciality Courts in Australia: Report to the Criminology Research Council, Australian Institute of Criminology (2006) 107 (‘Speciality Courts in Australia’).

^[82] Ibid 108, 109.

^[83] Ibid.

^[84] The Law Reform Commission of Western Australia, Court Intervention Programs: Consultation Paper, Project No 96 (2008) (at 6) (‘Court Intervention Programs: Consultation Paper’).

^[85] Problem-Oriented Courts (n 3) 196.

^[86] Speciality Courts in Australia (n 79) 109, 110.

^[87] Report on the Review of the Murri Court (n 23) 22.

^[88] Ibid 24.

^[89] Does Circle Sentencing Reduce Aboriginal Offending? (n 34) 4.

^[90] Steve Yeong and Elizabeth Moore, ‘Circle Sentencing, incarceration and recidivism’ Crime and Justice Bulletin: Contemporary Issues in Crime and Justice (No 226, Bureau of Crime Statistics and Research, April 2020).

^[91] Ibid 5.

^[92] Does Circle Sentencing Reduce Aboriginal Offending? (n 34) 7.

^[93] Ibid.

^[94] Court Intervention Programs: Consultation Paper (n 82) 8.

^[95] Ibid.

^[96] Julie Stubbs, Restorative Justice, Domestic Violence and Family Violence, Australian Domestic and Family Violence Clearinghouse, Issues Paper No 9 (2004) 12.

^[97] Ibid.

^[98] Queensland Murri Court (n 36) 9.

^[99] Speciality Courts in Australia (n 79) 129.