WHEN INDIGENOUS SENTENCING courts began to develop in Australia in the early 2000s, governments promoted the view that the courts could reduce the Indigenous incarceration rate, or – even more radically – they could reduce the ratio of Indigenous and non-Indigenous imprisonment. Age-standardised figures from 2017 show that the Australian Indigenous incarceration rate is thirteen times greater than that of non-Indigenous people. Reductions in incarceration rates and ratios are desirable, of course, but it is unrealistic to expect this from Indigenous sentencing courts alone. To reduce Indigenous incarceration will require significant change in the rates of criminalising Indigenous people, and for rates of criminalisation to decline will require changes to criminal laws and procedures, along with a sustained policy focus on reducing social and economic disadvantage of Indigenous people. White Australians need to listen to and work side by side with Indigenous people to get the social, economic and criminal justice policy focus right. This essay draws from research we have carried out both together and individually since 2001, and examines how the courts operate and what they can achieve.

Port Adelaide was the first place to hold an Indigenous sentencing court (by ‘Indigenous’ we mean Aboriginal and Torres Strait Islander) on 1 June 1999. Magistrate Chris Vass had been talking with and listening to Aboriginal people in the community of Port Adelaide for several years. He had in mind a new kind of court in which ‘Aboriginal people could feel more comfortable, [a court] that they could trust, where there was less formality, a court that would give people an opportunity to speak and have their family members with them without being overwhelmed by a large white presence.’

He got ‘huge support’ for the idea from the Aboriginal community. Furthermore, and importantly from a policy perspective, Vass said that the aim of the court was not ‘just about keeping people out of prison’, but ‘to have Aboriginal people trust the legal system, make them feel like they have a say…encourage them to be at court, encourage them to feel some ownership of the court process. That’s what it’s all about. It’s their court.’ Looking back, the first Indigenous sentencing court was a model of creating a bottom-up justice practice.

Other courts with formalised practices that included the involvement of Indigenous community members soon emerged in urban and regional cities and towns (these differ from the more ad hoc community consultation approach used by judicial officers when convening courts on circuit in remote communities). By 2007, twenty-eight adult and youth courts had been established in all Australian jurisdictions except Tasmania. Ten years later, the numbers had doubled. In March 2017, our survey of these courts found that fifty-six had been established. Today, Tasmania still does not have a court, the Northern Territory no longer has one and Western Australia’s Indigenous sentencing courts operate on an ‘as needs’ basis without funding. Just one Australian jurisdiction (Victoria) has enacted specific legislation when establishing the courts. With a legislative basis, the courts have greater permanence and a recognised place in the court structure.

In other work, we have described how the courts relate to the broader landscape of Indigenous justice practices in Australian urban and remote areas. Briefly, the courts do not use customary (or traditional) law or forms of punishment. Nor are they a type of Indigenous-controlled community court. They operate as a sentencing process that incorporates more dialogue and interaction with offenders who have admitted (or pleaded guilty) to offending, with an emphasis on using plain English. Eligibility is restricted to Indigenous (or South Sea Islander) offenders, although in the Northern Territory there was no such restriction. The courts are normally located within the magistrates’ court (or local court) level, but some can operate at higher or children’s/youth court levels (as in South Australia, Victoria, New South Wales, Queensland and, in the past, the Australian Capital Territory).

During the proceedings, a judicial officer sits at eye level with an offender, usually at a table where the defence lawyer and prosecutor also sit, rather than an elevated bench. One or more Indigenous Elders or community representatives are present, along with an offender’s supporters and, depending on the jurisdiction, the victim. The sentencing normally takes longer than in conventional courts, about one to two hours. And the court’s physical set-up and venue also differ; most are located in a purpose-built court room in the courthouse, but some are in community settings. The courts vary in the types of offences that can be considered (for example, some exclude sexual, partner or family violence offences), and they vary in the role and number of Indigenous Elders and community representatives involved.

The courts are not a form of restorative justice or therapeutic jurisprudence, although they share elements in common, such as an emphasis on aspects of procedural justice. When comparing similarities and differences in Indigenous sentencing courts and other Australian justice practices (restorative justice conferences and specialist or problem-oriented courts, the latter using terms from therapeutic jurisprudence), we find that Indigenous sentencing courts are in a category of their own, and for two reasons. First, their legal and justice aspirations are to make court processes more culturally appropriate, to engender greater trust between Indigenous communities and court staff, and to foster a more open exchange of information in court. Second, their political aspirations are to transform relations between ‘white justice’ and the Indigenous domain, to rebuild and empower Indigenous communities, and to change race relations. Neither restorative justice conferences nor practices derived from therapeutic jurisprudence have these aspirations.

In addition to how the courts operate, another point of difference is their names: Nunga Court (South Australia), Koori Court (Victoria), Murri Court (Queensland), and Circle Court and Youth Koori Court (New South Wales). The one court in the Australian Capital Territory is the Galambany (formerly Ngambra) Circle Sentencing Court. When such courts operated in the Northern Territory, they were called community courts; and when Western Australia had regularly scheduled Aboriginal sentencing courts, which were also locally referred to as community courts, the Barndimalgu Court was established specifically for domestic and family violence offending.

Different approaches are taken to renumerating Elders and community representatives. In all jurisdictions, transport and lunch (or morning tea) are provided. In New South Wales, there is no additional payment, but Queensland, South Australia and Victoria pay sitting fees. Elders have made strong arguments both for and against sitting fees. Some see a payment as an appropriate acknowledgement of their time, whereas others believe they may be compromised by receiving a payment. In the Nowra Circle Court (New South Wales), the Elders were concerned that the payment might create ‘further factions with complaints of favouritism regarding Elder selection’. Some may elect to donate their payment to a community organisation.

Jurisdictional differences are evident in the volume of cases heard: some are high volume (such as the Port Adelaide Court in South Australia, where any eligible offender who wishes to be sentenced by the court can do so), and others are low volume (such as the Nowra Circle Court in New South Wales, which restricts cases by ‘suitability’ criteria – for example, incarceration is likely and offenders are thought to be ready for change). High- and low-volume jurisdictions reflect distinctive policy approaches to the courts: to hear as many cases as possible or to limit numbers based on a defendant’s risk of incarceration and readiness for change.

Variation in case-load volume and selection criteria are likely to affect research findings on reoffending. We would expect that a low-volume jurisdiction, which spends a longer time on each case and reviews a person’s suitability, would have a lower (or slowed) rate of post-court offending compared with a high-volume jurisdiction, which spends less time on each case and does not review a person’s suitability. Of course, an analysis would also need to take into account the offence and offending profiles for cases in low- and high-volume jurisdictions. We lack research on variation in the rate or character of post-court offending, with attention to these jurisdictional differences. And, as we shall see, how best to study post-court offending is not settled and a point of controversy.

Compared with practices in other countries, these courts are not a separate system of justice, as the Navajo peacemaking courts are in the United States. Nor are they like courts in Canada that use Gladue reports, since the Australian courts involve Elders or community representatives in the sentencing process. In Canada, the need for sentencing judges to consider the background factors of Aboriginal offenders was established after a Supreme Court decision in 1999. As a result, community-informed pre-sentence reports – Gladue reports – are prepared for the judge by Aboriginal caseworkers, or by non-Aboriginal report writers in consultation with members of an offender’s community.

RESEARCH INDICATES THAT the community-building aims of Australian Indigenous sentencing courts are being achieved. Offenders view Indigenous courts as being fairer than mainstream courts; the presence of Elders increases confidence and respect for the sentencing process and a sense of community empowerment; the courts strengthen the relationship between Indigenous communities and the criminal justice system; and the process is culturally sensitive, engendering more suitable sentencing options. In addition, there is evidence of improved court appearance rates and compliance with court orders. All these elements were what Vass and the Port Adelaide Aboriginal community had originally envisaged.

However, with increasing government interest in the courts, a dominant view has taken hold: that we should expect Indigenous sentencing courts to reduce Indigenous incarceration rates or, even more ambitiously, to reduce the ratio of imprisonment of Indigenous and non-Indigenous people. This is unrealistic. In part, this is because the courts handle a relatively small number of Indigenous people who are caught up in the criminal justice system. But even if the courts expanded, Indigenous incarceration rates would not fall significantly. To see such change, policy must address ‘front-end’ problems of Indigenous social and economic disadvantage, and laws that unduly criminalise driving and public order offences, as well as people with substance abuse and mental health problems. In countries such as Australia, people in prison are composed disproportionately of society’s poorer and more disadvantaged. Australia’s rate of incarcerating Indigenous people is among the highest in the world.

Still the question remains: can the courts reduce reoffending to a greater degree than mainstream courts? Governments persist in asking this question. Unfortunately, it has become a dominant focus in evaluating the courts’ merits, overlooking their community- and trust-building aims and turn-up rates on the day.

Studies come to different conclusions on reoffending: it depends on how the research is carried out and how reduced or increased offending post-court is conceptualised and measured. When researchers use quantitative methods and a binary understanding of reoffending (that is, reoffended: yes or no), there are few or no differences in reoffending between those sentenced in Indigenous and mainstream courts.

Quantitative studies of reoffending have several recognised problems. Although they may have a larger number of cases, they lack accurate and meaningful detail on each case (for example, complex offending patterns prior to a court case, offending that immediately led to the court case, an offender’s living circumstances and wellbeing, and what happened after the court case). The complexities of each individual are simplified into a small number of variables. Despite the problems, these studies produce what policy-makers prefer: one simple finding (or one number) that helps them to decide whether a program or policy ‘works’ or not.

Our research comes to different conclusions about the value of Indigenous sentencing courts. We use qualitative methods (such as in-depth interviews with offenders and victims) that ask participants about their experiences during and after court sentencing; we trace the complexities of an offender’s circumstances and offending behaviour before and after court sentencing; and we conceptualise and measure pre- and post-court offending differently. Rather than the yes/no binary – offended or did not offend – our research has identified a third group, whose behaviour before and after a court process is ‘faltering, hesitant and oscillating’, as Cambridge criminology professor Sir Anthony Bottoms puts it. This third group, whom we call ‘partial desisters’, are on a pathway to desistance.

Our findings affirm the perceptions of community people and others close to the courts who believe that the court has been successful in reducing offending. What they have in mind are not only those who have stopped offending completely, but also those who have slowed down or begun to change in positive ways. Our approach uses the new desistance framework to conceptualise and measure offending.

MANY PEOPLE ASK, what is desistance? There is a straightforward answer: it is the ‘permanent cessation of offending behaviour’, as Scottish criminologists Dr Hannah Graham and Professor Fergus McNeill say. Less straightforward is how best to measure or operationalise that definition. Are we measuring the cessation of offending or of criminal justice contact? And for what types of offending and contact? We compare two broad approaches to conceptualising and measuring desistance: an older style desistance (or rehabilitation) framework and a new desistance framework.

The older approach asks what works, and the new approach asks, how does change work?

The older focuses on offending (identifying and correcting deficits), and the newer focuses on strengths (identifying behaviours that promote pro-social activities). The older is event-driven: it assumes that desistance is an event (yes or no) within a set time frame. But the newer is process-oriented: it assumes that change is gradual and includes setbacks and relapses. The older approach assumes that intervention programs are the major lever of change, while the newer approach assumes that change occurs ‘before, behind and beyond the intervention’, as McNeill says. And while the older framework seeks to identify programs that work (or not) to reduce reoffending using quantitative methods and by analysing large datasets, the new framework seeks to understand individuals’ worldviews and day-to-day experiences. It does so using qualitative methods and by analysing lived experiences.

We have carried out two projects that apply the new desistance framework to Indigenous sentencing courts. The first was in 2008 for all non-partner violence adult cases handled from 2002 to 2005 in Nowra, New South Wales. The second was of partner violence cases in two New South Wales sites (Nowra and Kempsey) and two Queensland sites (Rockhampton and Mount Isa) from 2010 to 2014. Ours is the only Australian research that has used the new desistance framework to analyse Indigenous sentencing courts, and is one of two studies that have used this framework in analysing partner violence.

The Nowra study had a small number of cases (thirteen), but this number represented all the cases handled by the circle court from 2002 to 2005. The offenders’ criminal histories three years before and three years after the circle were analysed meticulously.

Of the thirteen people (nine men and four women), five completely desisted, five partially desisted and three persisted in offending. Although the partial desisters had reoffended, it was minor and occurred a long time after the circle court, or occurred right after, but with no subsequent offending. If we had used the older framework and a binary (yes/no) measure of offending, we would have concluded that eight offenders had reoffended. Using the new desistance framework and examining each individual’s trajectory with care, it was more accurate to say that three definitely reoffended, and five were on a pathway to desistance.

The group of partial desisters should be considered when analysing reoffending. Reinforcing this point, the Elders and court staff viewed the partial desisters as ‘success stories’ because they had taken steps towards change. The Nowra research sought to provide a rich and comprehensive account of the impact of the circle court process and the Elders. For most offenders, the circle process was a deep, emotional and spiritual experience because the Elders were there. The Elders knew them and could be tough on them, but they blended accountability with encouragement and support. As a Nowra Elder told us, ‘when we talk to [the defendants], we never tell them they’re no good. We want them to be somebody… We shame their actions, not themselves.’

The Indigenous partner violence study in New South Wales and Queensland had thirty offenders. Almost all had problems with alcohol or drugs and a history of previous criminal justice contact, and most had spent time in jail. Their profile was similar to those in the Nowra non-partner violence cases.

Of the thirty people (twenty-nine men and one woman), twelve completely desisted (40 per cent), five partially desisted (17 per cent) and thirteen persisted in offending (43 per cent). Classifying the groups was based on several criteria in addition to offending. These included how an offender related to the Elders and community representatives, whether they accepted responsibility for their actions towards a partner, whether they felt proud of how their lives had changed since the court hearing and whether they had formed new or stronger social bonds with positive role models or family members. These items tapped a new desistance framework emphasis on how change works (if change occurred) for offenders participating in an Indigenous sentencing court.

The sentencing courts helped to change the lives and identities of just more than half of the partner violence offenders (seventeen of thirty, 57 per cent). The process of change was not linear and immediate, but zigzag and lengthy. For the complete and partial desisters, violence towards their partners would not have changed had they been sentenced in conventional courts. Except for two (both persisters), the court experience was positive and preferred over the mainstream court. Elders and community representatives can be a catalyst for pro-social identities, as long as an offender is ready for change. Not all were ready, as the persisters demonstrate. These men blamed others for their violence, including their partners, family members and friends. Like other research, we found that targeted men’s group activities can also be effective in changing attitudes and behaviour.

THE NEW DESISTANCE framework better grasps the setbacks and obstacles that people face in their efforts to move from a criminal to a non-criminal life. The process of desistance takes time. As Bottoms says, it ‘does not appear by magic, [but] has to be worked for’.

Research on offending and on reducing offending needs to pay more attention to the social and legal processes that encourage people on pathways to desistance and pro-social change. Such an approach requires a sufficient time frame to observe change, an understanding of the lifeworlds of offenders and victims, and methods that do not rely solely on binary understandings of reoffending.

New desistance scholars have focused on supervision practice (that is, the work of probation officers) in what is called ‘assisted desistance’, one element of which is offenders’ ‘confidence that supervisors really do understand the social worlds they inhabit’, as Bottoms says. Elders and community representatives of Australia’s Indigenous sentencing courts are not probation officers, nor do they see themselves taking this role. But they do call upon ‘culture’ to reform offenders’ identities; they draw on knowledge of offenders’ relationships and encourage change by supporting them. All these activities align with the concept of assisted desistance.

One group that has been overlooked in the new desistance literature is lawyers representing defendants, who may be practising assisted desistance without realising that there is a considerable body of theory and research to back up their efforts. The defence bar has much to gain by becoming familiar with the new desistance framework and seeing its value in framing arguments in court and when communicating with clients. Indeed, all criminal justice practitioners have much to gain.

Those researching police, courts and reoffending must also become familiar with the new desistance framework. It challenges dominant ways of measuring reoffending and the success (or not) of criminal justice interventions. Quantitative researchers, in particular, need to contemplate methods of measuring the trajectories of partial desisters and of not viewing reoffending in simple binary terms. This will pose challenges because it requires assembling more sophisticated datasets with greater detail on the contexts, seriousness, timing and persistence (or not) of offending over time.

Indigenous sentencing courts (or other Indigenous-focused programs) can and do have important community- and trust-building roles, but they cannot by themselves have a significant impact on reducing Indigenous incarceration rates, nor should their efficacy be measured solely against this criterion.

If government policy-makers and politicians are serious about changing Indigenous incarceration rates, they must address social and economic disadvantage in ways that are practical and meaningful to Indigenous people. They must reduce the reach of law in criminalising driving and public order offences, breach of court orders, unpaid fines and those with substance abuse or mental health problems. That is the ‘front end’ of what needs to be done.

The corrections policy ‘back end’ also needs to change. As Rutgers University criminologist Todd Clear says, the mandate to policy-makers and politicians is clear. Legislation must change to significantly reduce the numbers of people sentenced to prison and the length of time imprisoned, especially for violent offences.

These are large societal goals. They need to be accompanied by a deep understanding of what happens in everyday life as children, youth and adults struggle to be and become, to live, learn, love, achieve, work. Apparent failure to be and become, according to societal rules, is the subject of criminology. But so too, according to the same rules, is individual aspiration and exertion for change. The new desistance framework breathes life into the potential for pro-social change, which is often assisted by others, and set within the limits of structural possibilities. 

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