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International Journal for Crime, Justice and Social Democracy |
James Morton
Queensland University of Technology, Australia
Prompted by a lack of nationally-focused literature on sentencing courts for Indigenous offenders, Paul Bennett (2016) presents a comprehensive analysis of Australia’s Indigenous sentencing courts. In line with the national approach, the book overviews the over-arching framework, processes, aims and critiques of these specialist courts in use across Australia. The principle aim of the book is to promote the use and expansion of these courts. Bennett effectively argues that, through cultural appropriate practices, these courts empower and guide Aboriginal people through the court process and provide a much-needed dialogue between the courts (justice system) and the Indigenous community. In doing this, the author communicates the complex needs and situations of both Aboriginal defendants (their family and community) and victims when sentencing Indigenous people.
Bennett openly acknowledges his limitations in researching and writing this book and, pertinently, the lack of an Indigenous voice in the literature. However, through Bennett’s promotion of the significance of these courts and in his arguments in support of their expansion in more jurisdictions across Australia, he has contributed to the debate, raising issues important to Indigenous people. In doing so, Bennett has conveyed to the reader the importance of addressing Indigenous disadvantage and Indigenous involvement in the sentencing process.
The tenth of April 2016 marked 25 years since publication of the findings of the Royal Commission into Aboriginal Deaths in Custody (1991). Despite the Royal Commission’s recommendations aimed at reducing the rate of Indigenous people entering the criminal justice system, one quarter of a century on the situation has not improved. However, one recommendation that has been shown to be rather effective in shifting Australia’s enduring sentencing paradigm is the use of Indigenous sentencing courts. Advocated and first convened by Magistrate Chris Vass, these courts emerged in 1999 in South Australia and have since expanded to 50 courts across Australia.
Since the establishment of these courts, numerous academics, legal scholars and governments have analysed their validity and effectiveness. Despite the abolition in 2012 of both the Community Courts in the Northern Territory and Queensland’s Murri Court as a result of scepticism by some in the field of their ability to reduce Indigenous incarceration rates and recidivism, some of this cynicism is shifting. As of 13 April 2016, the Murri Court in Queensland was reinstated under the Palaszczuk Labour government. This renewed commitment by Queensland’s Labor government, along with the other seemingly stable specialist courts across Australia, highlights the importance of a text which comprehensively analyses these courts’ functions and significance.
In the first four chapters of the book, Bennett provides an overview of the courts’ purpose, process and structure. Within the discussion of ‘what the courts are’, ‘why they are significant,’ and ‘how they have developed’, Bennett focuses on the value of Indigenous involvement and the informal approach. In line with his argument promoting the use of these courts, he highlights the importance of the courts’ recognition of key factors of Indigenous disadvantage. Furthermore, he tackles issues that have arisen in determining a person’s Aboriginality in sentencing practices. There is not much distinction between the information presented in these chapters and other publications. However, the style of delivery, comparisons of court jurisdictions and models, and synthesis of the literature makes this both a distinctive and useful source.
The book’s latter chapters provide an evaluation and critique of the courts’ processes and outcomes, noting whether the courts’ rationale and theoretical underpinning aide in achieving their desired aims. Bennett emphasises that the aims and effectiveness of these courts go beyond measuring recidivism, a key criticism of Indigenous courts. Bennett effectively argues that an individualised and an ‘equality for all’ approach are necessary in addressing the underlying intergenerational disadvantage faced by Indigenous people, refuting criticisms of ‘special treatment’. This lends to his over-arching argument that these courts have increased court attendance rates and have improved the relationship between the courts and sectors of the Indigenous community.
Through a detailed canvass of available literature and an observational approach, Bennett’s work is distinctive to others in the field. Bennett’s expertise, as a both a lawyer and a magistrate, allows him to contextualise the literature, shown in his in-depth commentary on the material. Despite this otherwise inclusive approach, Bennett’s work may have benefitted from a discussion of non-sentencing diversionary practices. This would have allowed for a comparison and distinction to be made between the two and for arguments noting the importance of ‘full’ diversionary practices, when appropriate, to be afforded to the reader.
Additionally, Bennett’s work could have further expanded the discussion on court appointed programs. Whilst Bennett does well to juxtapose the rehabilitative benefits and the complications of these programs, he missed an opportunity to note how the programs are a ‘hard’ option, challenging the ‘soft’ option argument of critics. Both the Nunga Court in South Australia and the Murri Court stipulate that non-engagement with these programs will end in referrals to the mainstream court.
Despite these minor criticisms, as Bennett’s work provides a complete collation of available literature, this text is a useful source for those working in or interested in the justice field. The text’s scope is extensive in over-viewing all aspects of the courts’ purpose, structure and aims. Most importantly, it evidences how the courts have achieved their key aims. In this discussion, Bennett emphasises that aims such as improved and diverse sentencing practices, increased court attendances, and Indigenous participation and empowerment should not be overshadowed by reduced recidivism rates, as these are equally important.
Overall, Bennett has provided a comprehensive overview and analysis of Australia’s Indigenous sentencing courts. Despite some limitations, namely a lack of discussion of diversionary practices and a holistic program-based approach, he has done well to highlight the importance of these courts in addressing Indigenous disadvantage and rebuilding trust between Indigenous communities and the criminal justice system. Despite noting inconclusive effects on recidivism rates, Bennett makes a good case for the expansion of these courts, citing increased attendance rates, heightened participation by Indigenous people in the court process, and the collection of diverse data to improve justice practices. This text should not only be read by justice and welfare professionals but also by policy writers and politicians. Further, due to its synthesis of information and accessible writing style, this book would also make an excellent text for law, justice and social work students.
Correspondence: James Morton, Barrister at Law; Lecturer, School of Law, Faculty of Law, Queensland University of Technology, 2 George Street, Brisbane 4000 QLD, Australia. Email: je.morton@qut.edu.au
Royal Commission into Aboriginal Deaths in Custody (1991) Royal Commission into Aboriginal Deaths in Custody: National Reports (Vol 1-5), and Regional Reports. Canberra: Australian Government Publishing Service.
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URL: http://www.austlii.edu.au/au/journals/IntJlCrimJustSocDem/2016/49.html