Clearly, new approaches are needed across the spectrumto enable Indigenous people to exist in the presentand future in self-determining and positive ways. And,slowly but surely, Australia's justice system is beingreformed. Over the past 20 years, Indigenous rightsadvocates, policy makers and lawmakers alike have workedtogether to make justice more accessible, more meaningful,and more effective for Indigenous people. The introductionof Indigenous justice practices, both in Australia andoverseas, is effectively contributing to a more approachable,less intimidating, experience of "white man's justice".
Indigenous paradigms of justice share a holistic philosophicalfoundation treating justice as a circular concept connectingeveryone involved on a continuum. Imagined visually,the continuum represents the entire process, from disclosureof problems, to discussion and resolution, to makingamends and restoring relationships. The people - perpetrators,victims, families, elders - form the circle. At thecentre of the circle are the crime, the underlying causativeissues, and the end goal of harmonious resolution forall involved, and the community as a whole.
In practice, Indigenous justice draws upon principlesof restoration and reparation. The former restores harmonyby mending damaged personal and communal relationships,and the latter are the actions and processes by whichan offender makes things right - both for him/her selfand those affected by the offence. The victim is thefocal point, and the goal is for the offender to makesincere amends through deliberate acts of apology, askingforgiveness, and making restitution. Regaining dignityand trust is an important aspect of returning the victim,the offender and the community to a healthy physical,emotional, mental, and spiritual state.
This is quite a departure from the Western parableof justice, which is adversarial, hierarchical, retributiveand punitive - in both theory and practice: adversarialin its placement of two opposing parties in a courtroomin order to determine guilt or innocence, or declarea winner and loser; and hierarchical in that the verticalpower structure is a top-down system, with decisionmaking limited to a privileged, powerful few. It seeksretribution in maintaining that because the victim hassuffered, the criminal should suffer, too. It also punishesin its categorisation of criminals as wicked peoplewho are responsible for their actions and deserve tobe punished in order to appease the victim, satisfysociety's desire for revenge, and reconcile the offenderto the wider community by paying a debt to society.Right and wrong, good and bad, black and white.
Brett Ahmat, former Executive Officer of the MelbourneMetropolitan Regional Aboriginal Justice Advisory Committeepointed out that Indigenous justice in Australia isnot about incorporating traditional law, but about applyingmainstream law in a more appropriate way. Indeed, theoperation and success of Indigenous justice is groundedin its recognition, acceptance and formalisation bythe Western system. Like many of the people it targets,Indigenous justice is at once embedded within, and outsideof, the mainstream system.
Magistrate Chris Vass was a key figure in the establishmentof systems of Indigenous justice in Australia. Vasstravelled on circuit to South Australia's PitjantjatjaraLands for 17 years. This, combined with 15 years' experiencein Papua New Guinea, motivated him to consult with localIndigenous groups, the Aboriginal Legal Rights Movementand the Department of Aboriginal Affairs, to redressIndigenous people's deep distrust of the criminal justicesystem. In June 1999, the first Aboriginal Court Daywas convened in South Australia, and not long after,it was renamed the Nunga Court. In 2002, Indigenouscourts based on the South Australian model were establishedin Victoria (the Koori Court) and Queensland. Speakingon air in 2000, Vass explained how they work: "Idon't sit on the bench. I come down and sit at the otherside of the bar table. Defendants sit at that tableinstead of sitting in a dock; they sit right in frontof me, next to their lawyer, and family members areable to sit with them. And everybody gets to say something.So that makes it a lot more intense and a lot more personal,but in the end there's still got to be a sentence. Thesentence is a lot more personal for the people sittingin the court room."
The degree of informality adopted by an Indigenouscourt varies by jurisdiction and magistrate, but, ingeneral, considerably more time is taken for each matterthan would be the case in a regular court. Everybodyspeaks plain English, and Indigenous elders play a keyrole in advising the magistrate on an appropriate sentence,which is sometimes a community based sentence.
New South Wales and the ACT have taken things a stepfurther and adopted the Canadian Circle Sentencing model.Circle sentencing represents a significant paradigmshift towards the notion of law as a way of life - aliving concept that is known and understood throughexperience. In Canada, the structure of relationshipsin many tribal communities is recognised as being paramountto a legal system, where tribal law regulates the behaviourof its members and determines the flow of how problemsare handled. Offenders are forced to be accountablefor their behaviour, to face the people whom they havehurt, explain themselves, ask forgiveness, and takefull responsibility for making amends. Ritual, suchas ceremonial sweats, fasting, and purifications, isoften used to cleanse the spirit and soul of bad forcesthat caused the offender to begin the healing and cleansingprocess necessary for the victim, the offender, andtheir families.
Established in 2002 and 2004 respectively, the NSWand ACT Circle Sentencing Courts differ from the NungaCourt model in operating less like an Indigenous courtday in a regular courthouse, and more like a communityforum. Held in culturally appropriate locations, suchas a community centre or traditional place, participantssit in a circle that is closed to observers, and documentationdescribing the offence and the offender is commentedon by all participants - the victim (if they want toparticipate) the offender, their kin and support people,an Aboriginal Project Officer, the defence counsel andthe police prosecutor. The Circle discusses an appropriatesentence plan for the offender, and reconvenes aftera few months to assess the offender's progress. Itsfocus is primarily repeat offenders who are likely toreceive a custodial sentence, but not all cases canbe heard in the Circle Sentencing Court - sex offencesand strictly indictable offences are ineligible - andjail remains a sentencing option for the group.
A 2003 report by the NSW Judicial Commission and AboriginalJustice Advisory Council surveyed Circle Court participants,who gave positive feedback. All except one of eightvictims surveyed said they were satisfied with the finaloutcome, with one commenting that, "the offenderhas become a better person with knowledge that he lackedbefore." Offenders also responded positively, withall bar one agreeing that the outcome was fair: "Atfirst I was not happy with the sentence, but I was gladthe Elders were there for support, and the victim hadmore of an understanding of me." The offendersstated that the most powerful aspect of the circle sentencingexperience was facing people from within their own community,people whom they had known their whole lives. Supportpeople thought the opportunity for open discussion ina safe environment between offender and victim had hugeimpact: "He (the victim) had the opportunity toask why did you do this to me? And also an opportunityto give his comments on the sentence." "Ithink it was great that they (the defendant) could talkto us. In a white man's court they just clam up."
All the defendants felt their behaviour had changedsince attending the circle: "It had a positiveimpact on me...I have settled down." "I stayhome more...feel more secure...my relationship has developedand I have more interaction with my children.""I don't drink and drive anymore...it has changedmy life...I'm more work-oriented than I was before."
It's early days for number crunching on the recidivismof offenders that experience Indigenous justice, butit's looking good. A 2001 report by the Canadian Departmentof Justice found that "restorative justice programs,on average, yielded reductions in recidivism comparedto non-restorative approaches to criminal behaviour".In one example, all 68 adults who participated in oneAlaskan Indian circle didn't repeat the offences orviolate any other laws during their probation periods.This may not sound like much but, in fact, it representsa significant break in the cycle of offending and re-offendingthat many young Indigenous people have fallen into.
The whole of society has much to learn from the earlysuccesses of the Indigenous justice paradigm. Its effectivenesswith Indigenous offenders would surely translate togreater rehabilitation with non-Indigenous offendersalso. Chris Vass sums it up nicely;
"We get better results, not only for the offenders,but for the victims and for the community, if we thinka bit more laterally about how we can stop people fromcommitting crimes. And locking people up, throwing thekey away and putting them in a cell is not an answer.It's never been proved to be successful. In fact, allit seems to do is allow relatively minor offenders tomeet people who are major offenders and learn the trade."
In New Zealand, the community based focus of the Indigenousjustice approach is being applied to other areas, suchas youth offending. Family group conferencing, stronglyinfluenced by traditional Maori concepts of collectiveconflict resolution, unites young people, their families,and victims together to decide how best to deal withoffending. Fragmenting the "corrective" process,labelling the offender a "misfit" and "socialmenace", and removing him/her from the communityare bandaid solutions that serve only to reinforce negativebehaviour. The key to true healing and resolution forvictims, offenders, their families and communities isto treat crime as a natural human error requiring positive,corrective intervention by families and community leadersin ways that retain offenders as an integral part ofthe community. After all, we are all part of a community,with our own histories, kin and non-kin relationships,and meaningful ways of being in the world.