Indigenous sentencing courts and partner violence: perspectives of court practitioners and elders on gender power imbalances during the sentencing hearing.

• Jurisdiction: Australia
• Date: 01 August 2010
• Author: Marchetti, Elena

One of the most common forms of violence in Indigenous communities is violence between intimate partners. Indigenous sentencing courts and specialist family violence courts (as well as mainstream courts) are used in Australia to sentence Indigenous partner violence offenders. Currently, there are over 50 Indigenous sentencing courts operating in all Australian states and territories, except Tasmania, which use Indigenous Elders to assist a judicial officer in sentencing an offender. Debates exist surrounding the issue of whether alternative justice forums are appropriate in cases involving domestic and family violence. Feminist advocates are concerned with the appearance of a 'too lenient' response to violent men and the danger of exposing a victim to further power imbalances during a hearing, whereas Indigenous advocates focus on the need for justice practices that are more culturally relevant, sensitive and appropriate. This article explores the extent to which gendered power imbalances are present in Australian Indigenous sentencing court hearings concerning intimate partner violence offending, and how, if at all, such power imbalances are managed by a process which aims to be more culturally appropriate.

Keywords: Indigenous sentencing courts, intimate partner violence, power imbalances

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This research goes some way in mapping and assessing the processes of Indigenous sentencing courts and the role of the Elders, when dealing with family violence offences. In particular, this research focuses on intimate partner violence (rather than other forms of family violence) since it is the most frequent form of family violence in Indigenous communities (Kelly, 2002; Mouzos, 1999). Rates of intimate partner violence and intimate homicide in Indigenous communities are widely documented as being much higher than that in non-Indigenous communities, despite the fact that measuring these rates is not straightforward (see Harry Blagg, 2008, p. 142; Mouzos & Makkai, 2004, p. 30; Memmott, Stacy, Chambers, & Keys, 2001). The use of Indigenous sentencing courts for sentencing family violence offenders has been supported and encouraged by many of the key players and Elders (1) involved with the courts. However, others, including key players and Elders involved with the Koori Courts in Victoria, consider the dynamics surrounding the offence of family violence to be too complex for consideration by Elders who sit on the Indigenous sentencing courts (Harris, 2006, p. 122).

The presence of gendered power imbalances in a hearing concerning domestic and family violence is often identified as being a particularly problematic aspect of alternative justice processes (Daly & Stubbs, 2006, p. 17). Victims who are present at hearings held in alternative justice forums often lack proper support to counter the risks of further abuse and control continuing during such hearings. The main focus of this article is exploring the extent to which gendered power imbalances are present in Australian Indigenous sentencing court hearings concerning intimate partner violence offending, and how, if at all, such power imbalances are addressed by the presence of Elders. Given the offender focus of the courts, this research attempts to determine what, if anything, can be said about their ability to address victim needs and victim safety. The research specifically focuses on the courts in New South Wales and Queensland and on the views of magistrates, Elders, court workers and domestic violence support workers associated with those courts. Feminist and critical race/Indigenous theories that have explored the complexities involved in responding to family violence in Indigenous communities are used as the theoretical framework from which to consider whether the processes of the Indigenous sentencing courts are suitable for dealing with offenders and victims of intimate partner violence. In particular, emphasis will be placed on studies that have focused on critiquing the different types of court processes that are used for resolving matters involving family violence.

The article firstly describes the different processes of the Indigenous sentencing courts in Queensland and New South Wales. Next, it outlines what feminist and critical race/Indigenous scholars have said about using alternative justice forums to deal with family violence offences and whether these forums are able to rectify any gendered power imbalances that exist during the hearing itself. Finally, findings from an analysis of data collected from 39 interviews and eight observations of intimate partner violence sentencing hearings in the courts is presented to discuss whether the presence of Elders in Indigenous sentencing courts is able to provide a buffer for the victim against experiencing gendered harms during the hearing.

Indigenous Sentencing Courts in Australia

Currently, there are over 50 Indigenous sentencing courts operating in all Australian states and territories, except Tasmania. These courts were first established in urban centres in South Australia (the first was opened in Port Adelaide, a suburb of Adelaide, Australia on June 1, 1999) and today they operate under varied legislative frameworks and with differing eligibility criteria (Marchetti & Daly, 2004, 2007).

Indigenous sentencing courts arose first in Magistrates' or Local Courts, but are now part of the Youth (or Children's) Courts in some jurisdictions and the District Court in Victoria. The courts have emerged mainly from the efforts of individual magistrates and Indigenous community members, but they are now becoming formally recognised as a legitimate forum for sentencing Indigenous offenders, with the enactment of legislation to validate their operation. Despite their legitimisation, however, the number of offenders sentenced in these courts in most jurisdictions is still quite low as compared to the number of offenders processed via mainstream courts. Their purpose is often described as being: (1) to address the overrepresentation of Indigenous people in the criminal justice system; (2) to address recommendations by the Royal Commission into Aboriginal Deaths in Custody, in particular, those centring on reducing Indigenous incarceration and increasing the participation of Indigenous people in the justice system and (3) to complement Justice Agreements that have been forged in Australian states and territories (Blagg, 2008; Briggs & Auty, 2003; Fingleton, 2007; Hennessy, 2006; Magistrates' Court of Victoria, 2003; Potas et al., 2003).

These courts are not practicing or adopting Indigenous customary laws. Rather, they are using Australian criminal laws and procedures when sentencing Indigenous people, but allowing Indigenous Elders to participate in the process. This is different from a court's recognition or application of Indigenous customary laws at sentencing as, for example, when Indigenous punishment practices such as spearing, shaming and banishment are taken into account. (2) Although the Indigenous sentencing courts may recognise the fact that certain cultural practices have been followed prior to the sentencing hearing--such as displaying respect for Elders, giving apologies according to customary traditions or the imposition of banishment--generally the sentences imposed fall within the criminal sentencing law framework of the dominant Australian criminal justice system (Fingleton, 2007, p. 17; Harris, 2006, p. 15).

Practices amongst the courts vary, however, there are some common elements: (1) an offender must be Indigenous (or in some courts, Indigenous or South Sea Islander) and must have entered a guilty plea or was found guilty in a summary hearing; (3) (2) the offender consents to having the matter heard in the Indigenous sentencing court; (3) the charge must be one that falls within the jurisdiction of the mainstream court of equivalent level and (4) the Magistrate retains the ultimate power in sentencing the offender.

The courtroom setting is quite different to mainstream courts, with most jurisdictions having remodelled or built new courtrooms to house the Indigenous sentencing courts. There is more focus on dialogue, resulting in magistrates no longer sitting on an elevated bench, but rather sitting around a circle or an oval bar table with the offender, their support person (if one has attended), Elders, the prosecutor and defence lawyer. The involvement of the Elders varies between courts, but in all courts the Elders will speak frankly with the offender. All courts now employ Indigenous court workers (either within their own court administration or via the related department of justice) who organise Elders to appear at the hearings, liaise between the offender, prosecutor and victim (if they agree to participate), and sometimes monitor an offender's progress after the hearing.

The court practices are sometimes associated with restorative justice and therapeutic jurisprudence (see for example, Freiberg, 2005; King, 2003). However, although they share some similar qualities there are good reasons for maintaining that the Indigenous sentencing courts be viewed as being in a category of their own (Marchetti & Daly, 2007). The Indigenous sentencing courts are certainly more offender-centred than restorative justice practices, which tend to be more victim-centred (Holder, 2004, p. 20) and they are operating according to a transformative, culturally appropriate and politically charged participatory jurisprudence that goes beyond the principles found in restorative justice and therapeutic jurisprudence. How this type of jurisprudence should operate for intimate partner violence matters (where victims are particularly vulnerable to being subjected to further victimisation due to the presence of gendered power imbalances) is, however, something that needs to be considered.

Victoria currently excludes family violence offences and the Northern Territory directive suggests caution...