Limerick, Michael --- "Indigenous Community Justice Groups: the Queensland Experience" [2002] ALRCRefJl 4; (2002) 80 Australian Law Reform Commission Reform Journal 15

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Reform Issue 80 Autumn 2002

This article appeared on pages 15 - 21 of the original journal.

Indigenous community justice groups: the Queensland experience

By Michael Limerick*

In a number of Aboriginal and Torres Strait Islander communities in Queensland, community justice groups are proving to be an effective means for addressing serious community concerns around law and justice.

While some of the activities of these groups represent a rare example of the practical application of indigenous customary laws and processes, they have a more fundamental significance as an exercise of self-determination and a vehicle for community empowerment. Most importantly, in addressing deep-rooted justice issues, community justice groups are succeeding where the mainstream justice system is not.

Recognition of customary law

The recognition of customary law has always been a central theme of the policy dialogue around indigenous justice reform. The traditional trajectory of this dialogue has often led to a failure to appreciate the importance of community-based justice mechanisms in improving justice outcomes in indigenous communities.

For example, in discussions about the recognition of customary law, there has often been a tendency to conceive of customary law primarily as a body of rules and customs that governed indigenous society before colonisation, in much the same way as common law and statute law governs non-indigenous society today. From this viewpoint, the recognition of customary law is seen in terms of how these rules and customs can be given effect in appropriate circumstances in a contemporary context. What is overlooked in this approach is an appreciation that customary law is as much about a process of governing social relations as it is about the content of rules and customs that might be considered to make up a body of law. Understood in this way, the challenge of recognising customary law can be seen as the challenge of empowering customary processes or mechanisms by which indigenous communities can maintain social order.

A second shortcoming in much of the discussion around indigenous justice reform is that the obsession with the issue of recognition of customary law often obscures the more fundamental concern of giving effect to the right to self-determination. The exercise of an indigenous community’s right to self-determination in respect of justice might involve the reinstatement of customary processes to maintain social order. However, it might equally involve the development of contemporary justice mechanisms (controlled by the community), adapted or modified customary processes, or simply processes for greater community input into the mainstream justice system. It is too often assumed that the recognition of customary law is the principal aspiration of indigenous communities regarding justice. The reality is that greater autonomy and capacity to internally maintain social order (using customary law and process or otherwise) is usually the overriding goal for these communities.

The monumental Australian Law Reform Commission (ALRC) report, The Recognition of Aboriginal Customary Laws, looked at the issue of local justice mechanisms for Aboriginal communities.¹ However, the ALRC was limited by the traditional focus in the terms of reference on the question of mechanisms to apply customary law, rather than mechanisms to enable greater Aboriginal control over law and order generally.² Despite these limitations, the ALRC did consider a number of existing local justice mechanisms and possible options. It came to the conclusion that:

“In many Aboriginal communities, unofficial methods of dispute resolution operate alongside the general legal system. Local resolution of disputes in these kinds of ways should be encouraged and supported.”³

The ALRC also looked at schemes to divert offenders to community processes, and concluded that:

“Formal diversionary machinery, to divert offenders from the criminal justice system, is of limited relevance in customary law cases, though it may well be of value in the case of many minor offences (not necessarily involving customary laws) occurring in or involving members of Aboriginal communities.”⁴

In taking a narrow view of customary law, this recommendation appears to overlook the fact that, if an offence is diverted to a customary process, this is indeed a relevant mechanism in recognising customary law.

Community justice groups

Following the ALRC report, there was an increase in the impetus for developing community-based responses to crime and justice in indigenous communities. Nancy Williams’ study of dispute resolution among Yolngu people in Arnhem Land demonstrated the way in which these communities differentiate between matters that should be dealt with by traditional justice processes and those that should be dealt with by the criminal justice system.⁵ Kayleen Hazlehurst also made the case for governments to support community justice mechanisms to divert offending and community grievances away from the criminal justice system, ‘providing a more relevant and meaningful settlement within the Aboriginal community and avoiding the consequences of fines and imprisonment’.⁶ The Royal Commission into Aboriginal Deaths in Custody in 1991 recognised the importance of community-based justice strategies, making a number of recommendations calling for the greater involvement of indigenous communities in administering justice processes.⁷

Since the Royal Commission, a number of community justice programs have been initiated around Australia, many from government funding directed at implementing the report’s recommendations. Chris Cunneen has recently commented in relation to these types of programs that:

“In many cases where Aboriginal community justice initiatives have flourished there have been successes in reducing levels of arrests and detention, as well as improvements in the maintenance of social harmony. The success of these programs has been acknowledged as deriving from active Aboriginal community involvement in identifying problems and developing solutions.”⁸

Community justice groups in Queensland indigenous communities were one such initiative that derived from the response to the Royal Commission. The concept was originally piloted in three communities under a collaboration between the Yalga-binbi Institute for Community Development and the then Queensland Corrective Services Commission. Under the pilot, the Palm Island and Kowanyama Justice Groups were established in 1993 and the Pormpuraaw Justice Group was established in 1994.

Following the pilots, a state-wide program for supporting community justice groups was established by the Office of Aboriginal and Torres Strait Islander Affairs, now the Department of Aboriginal and Torres Strait Islander Policy. The guidelines for this program, the Local Justice Initiatives Program (LJIP), espouse the underlying principle that it is the members of indigenous communities themselves who are best placed to plan and implement effective strategies to address their crime and justice issues. Through this approach, the LJIP seeks to achieve the overall goal of reducing the over-representation of indigenous people in contact with the criminal justice system. Since 1996, the LJIP has overseen the growth of community justice groups across Queensland to more than 30, ranging from remote communities such as those in Cape York or the Torres Strait, to regional centres such as Mackay and Cairns, and even urban areas of Brisbane.

Composition

Community justice groups are established through a process of community-based planning in which the community determines the way its justice group is to be constituted. Members are generally elders and respected community members, although in an urban context, some justice groups have had representation by young people. While there is representation from both genders, there are typically more women than men.

The effectiveness and legitimacy of community justice groups has been dependent on the degree to which all significant interests within the community are represented. Some communities constitute their community justice groups on the basis of tribal or clan representation. In Kowanyama, for example, the group is made up of three men and three women elected by the three major clans, Kokobera, Kokomenjena, and Kunjen. The LJIP provides flexibility to indigenous communities to set up structures that are appropriate to the particular cultural make-up of a community and to incorporate traditional decision-making processes in their operations.

The LJIP has an annual budget of about $1.5 million. Grants to each community vary depending on the scale of the initiative, but average around $50,000 per annum. This generally pays for a facilitator, lease of a vehicle and basic operational expenses. Members are volunteers.

Activities

Community justice groups have opportunities for intervention through utilising customary law and traditional dispute resolution as well as through involvement in the formal justice system. For example, they typically take an active role in using traditional authority to prevent people from coming into contact with police. At Kowanyama, some of the older women on the community justice group conduct ‘barefoot night patrols’ to break up fights, resolve disputes and return children who are at risk of offending to their homes. Their status as elders in the community gives them an authority, which in many circumstances proves more effective than that of the police. The Kowanyama Justice Group has recently reported that:

“The Kowanyama Justice Group has been very effective in the area of dispute resolution. We believe the Community is a better place because this avenue is available and people use it on a regular basis.”⁹

Peena Geia, spokesperson for the Palm Island Justice Group, has stated that the concept of ‘shaming’ is central to the way the justice group operates:

“It sure has an impact because they know it’s a shame thing with our people. Many of our people know that they can misuse the white man’s law, but they know they can’t do it amongst their own. They know the Murri law is stronger, it always was and it always will be.”¹⁰

Also central to the way community justice groups operate is the concept of ‘restorative justice’, the need for a justice process to restore balance and harmony in a community and the need for an offender to ‘make good’ the crime to the victim and the community. In appropriate cases, state police refer matters to the community justice group to be dealt with using a ‘restorative’ approach, rather than charging the offender and invoking the ‘retributive’ justice the criminal courts impose. The community justice group counsels the individual involved as to their responsibilities to others (often called a ‘growling’), and may decide on an appropriate course of action for the offender to make good the offence.

Apart from using a variety of methods to divert community members from contact with the police and courts, community justice groups have also become involved in the formal justice system in a number of ways. At Palm Island, the group has been active in providing pre-sentence reports to the visiting Magistrate, and in ensuring that offenders complete any community service ordered by the court. Sentencing legislation for adults and juveniles has recently been amended to require courts to take into account the views of community justice groups in sentencing offenders. A number of community justice groups provide advice to correctional authorities about the suitability of offenders for return to the community on parole. Some community justice groups conduct visits to community members in prisons and youth detention centres. There are numerous other opportunities for community justice groups to become involved in the formal justice process.

A further function of community justice groups has been to address the underlying factors leading to offending behaviour, such as substance abuse, truancy, boredom, unemployment and lack of recreational opportunities. These initiatives, which can be characterised as crime prevention, have included activities to develop employment opportunities, run youth camps and sporting carnivals, and put in place strategies to reduce alcohol abuse.

Effectiveness

The positive impact of community justice groups has drawn comment in a number of official reports and program reviews in recent years.¹¹ In 1999, an interim assessment of community justice groups found that, while the potential of the recently-established community justice groups was yet to be realised, ‘there is significant evidence of improved justice outcomes from the long-standing community justice groups in Kowanyama, Palm Island and Pormpuraaw’.¹² The assessment found that in these communities, the number of juvenile appearances in the local court had on average been reduced to one third of the levels prior to establishment of the community justice group. There had also been significant reductions in the level of reported property crime. From a government service delivery point of view, a significant finding was that the success of community justice groups in crime prevention and diversion of offenders results in significant savings in the cost of administering the mainstream justice system. The cost of funding a community justice group for a year is about the same as the cost of incarcerating one person for a year.

A District Court judge from north Queensland recently reported to a government review of justice in Cape York communities that community justice groups ‘play an important role in assisting to make the experience in the mainstream justice system more meaningful and relevant for indigenous offenders and ultimately, in helping to divert indigenous offenders from the mainstream system where appropriate’.¹³

In the same review, the Uniting Aboriginal and Islander Christian Congress (UAICC), a church-run community development organisation with extensive experience working with community justice groups, made the following comments:

“When they are properly established and effectively resourced with appropriate personnel, the Justice Groups, through the LJIP, provide a mechanism for Aboriginal communities to take action to bring about more effective social control in various areas of community life.
Most notably, they have been able to set (and partially enforce) standards of social behaviour, take preventative action to stop situations of offending and conflict becoming much larger problems, deal with young offenders and reduce juvenile offending rates, mediate local disputes and resolve conflict.
They have been able to support women and children at risk.
When linked to a community corrections role, they have, as at Palm Island, been able to effectively supervise community service orders and make such orders a more viable alternative penalty than fines or detention.
They are able to recommend, from a local indigenous point of view, appropriate options for judges to consider in their judgement and sentencing of particular cases.”¹⁴

While community justice groups have been widely acknowledged for their positive impact, it is also recognised that the process of community empowerment and capacity-building is gradual, and that justice groups in many communities are still in their infancy. The need for better levels of resourcing, support and training for community justice groups has been raised in a number of official reports.¹⁵ More importantly, a key factor in the success of community justice groups has been the degree of integration and collaboration with justice agencies such as police, courts and correctional authorities. These partnerships are often dependent on innovation and flexibility on the part of government personnel and have often been frustratingly slow to develop.

A legislative basis

A critical issue surrounding the future direction of the community justice group initiative in Queensland is whether the groups should have a formal legislative basis and powers. There have been a number of calls from justice groups and other commentators in recent years for legislation to give formal authority to community justice groups to deal with offences and implement sanctions, including those based on customary law.

To date, the authority of community justice groups has derived from the status of their members in customary law, or the respect and integrity of their members within the community. The former coordinator of the Palm Island Justice Group has noted that ‘the core members of the group continue to enjoy a general sense of moral authority based on personal integrity’.¹⁶ The UAICC puts it as follows:

“[Community justice] groups are able to express power within the Aboriginal domain because of their own collective standing as authoritative individuals, their ability to use processes of mediation and social control that work and have meaning within Aboriginal society and are in accordance with Aboriginal law and custom.”¹⁷

In the absence of a legislative basis, community justice groups have exercised de facto legal authority through the partnerships they create with agencies of the justice system. For example, some community justice groups have forged a role in the supervision of correctional orders through collaboration with correctional authorities. At Palm Island, justice group members were appointed as convenors for the purposes of conducting community conferences under juvenile justice legislation.

A uniform legislative basis for community justice groups has not been possible to date, largely because of the diversity across justice groups. For any particular community justice group, it is not possible to make any assumptions about the appropriate scope and degree of authority to deal with offending behaviour, because this depends on a range of local issues. Relevant factors include the degree of respect and traditional authority commanded by the particular community justice group and the capacity and skills of the members of the group. Furthermore, many justice groups have not sought the authority to deal with offenders at all, but have instead focused on crime prevention.

For the moment, the precise role and authority of community justice groups will continue to be determined through negotiations at the local level between community justice groups, members of the community and relevant justice agencies. To provide more certainty about these matters, it has recently been suggested that the negotiations should be formalised in community justice agreements.¹⁸ Such an agreement would spell out in detail the scope of a community justice group’s authority to deal with breaches of the law, the circumstances in which offences will be diverted to the community justice group, and the types of sanctions that a community justice group could enforce. It would also detail the exact nature of the role of the justice group where an offence is to be dealt with by the criminal justice system (for example, the provision of sentencing advice or the supervision of community-based orders). The chief executive of the relevant justice agencies, as well as representatives from the community justice group and other community organisations, would sign off on this agreement. This would represent a clear indication of the commitment of the criminal justice system to acknowledge and allow a specific role for a community justice group and, where appropriate, a space within which the group could exercise its customary or community-derived authority.

Legislative recognition in sentencing

While a uniform legislative basis for community justice groups is problematic, there are opportunities to recognise a formal legal role for justice groups for specific purposes. For example, legislation has already formalised a role for community justice groups through a provision in sentencing legislation that requires courts to take the views of a community justice group into account in sentencing indigenous offenders.¹⁹

At a conference of community justice groups in 1998, (then) Magistrate Sarah Bradley explained how she had encouraged involvement of the Palm Island Justice Group in sentencing by the Magistrates Court.²⁰ She said it was particularly important in offences involving the community, such as assaults arising from family fighting or offences involving council property:

“[In appropriate cases] with the offender’s consent I will defer sentencing ... and send the offender to appear before the community justice group ... and ask the group to report back. ...As part of the report, I ask for any recommendations they make in sentencing. I’m pleased to say that in all the cases so far, I have been in full agreement with the recommendations that they’ve made in regard to sentencing and that’s the sentence I’ve imposed ... the report I get back is very impressive, it’s very reasonable and realistic and I’ve used it in every case so far.”

The rationale for these amendments is that the community justice group can provide advice and assistance to the court about relevant cultural and historical issues, particular circumstances in their community, and background information about the offender and his or her behaviour. The community’s input is particularly important in remote communities, where magistrates hold circuit court for only half a day every month or two months and cannot be expected to understand the local circumstances and cultural background for each community they visit. In addition, the community justice group can make suggestions about appropriate sanctions for the offender, including the availability of community-based sentencing options for rehabilitating the offender, such as local rehabilitative programs supervised by community elders, or programs on community outstations.

The input of the justice group provides an opportunity to advise the court in relation to customary law aspects of the offence and potential punishments. The involvement of community members in sentencing also increases the community’s respect for, and the legitimacy of, the adjudication process.

Conclusion

The success of community justice groups in Queensland has demonstrated the continuing relevance and value of customary law in contemporary indigenous communities, particularly in terms of traditional mechanisms for dispute resolution and social control. Furthermore, through the input of community justice groups into sentencing decisions, there is an opportunity for the specific content of customary laws to be taken into account in the judicial process.

However, of deeper significance than their role in reinvigorating customary laws and processes, community justice groups have been valued most of all in their communities as a practical expression of the right to self-determination. In communities still struggling with the legacy of dispossession and colonisation, and which have suffered (and continue to suffer) injustice at the hands of the criminal justice system, community justice groups have been a source of pride and empowerment.

* Michael Limerick is a Program Development Coordinator with the Queensland Department of Aboriginal and Torres Strait Islander Policy. From 1997 to 1999, he was coordinator of the Local Justice Initiatives Program. In 2001, he was a member of the Cape York Justice Study team led by former Justice Tony Fitzgerald.

Parts of this article are adapted from material first published in Volume 2 of the Cape York Justice Study Interim Report.

Endnotes

1. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws ALRC 31 (1986), AGPS, Canberra.

2. Ibid, para 691.

3. Ibid, para 177.

4. Ibid, para 175.

5. N Williams, ‘Local Autonomy and the Viability of Community Justice Mechanisms’ in KM Hazlehurst (ed) Ivory Scales: Black Australia and the Law (1987) New South Wales University Press, Sydney, 227- 40.

6. KM Hazlehurst, ‘Resolving conflict: Dispute settlement mechanisms for Aboriginal communities and neighbourhoods’ (1989) 21 Australian Journal of Social Issues, 309.

7. Royal Commission into Aboriginal Deaths in Custody, Final Report (1991) AGPS, Canberra. See, for example, recommendations 104, 113, 116, 187, 214, 220.

8. C Cunneen, Conflict Politics and Crime: Aboriginal Communities and the Police (2001) Allen & Unwin, Sydney, 193.

9. Kowanyama Justice Group ‘Submission to Cape York Justice Study’ (2001).

10. B Salgado, Radio special on community justice groups (1996).

11. Cape York Justice Study, Cape York Justice Study, Interim Report (2001), Vol 2, 116.

12. Department of Aboriginal and Torres Strait Islander Policy and Development, Interim Assessment of Community Justice Groups (1999) DATSIPD, Brisbane.

13. Cape York Justice Study, Cape York Justice Study, Interim Report (2001), Vol 2, 117.

14. Ibid, 116.

15. See reports cited in ibid, 117.

16. Ibid, 119.

17. Ibid.

18. Ibid, 120.

19. Penalties and Sentences and Other Acts Amendment Act 2000 (Qld).

20. Department of Aboriginal and Torres Strait Islander Policy and Development ‘Coming Together on Local Justice’: Conference Report (1999) DATSIPD, Brisbane.