In Part 2 of this series Ling Ye analyses indigenous sentencing approaches, considering Australia’s implementation of Indigenous Sentencing Courts compared to New Zealand’s restorative justice approach
Australia has the most advanced and developed Indigenous sentencing courts in its legal system; Indigenous sentencing courts operate in all states except Tasmania. Similar to the New Zealand Marae Youth Courts, the Indigenous sentencing courts are not an alternative to the dominant legal system. Instead, they use Australian criminal laws and procedures to sentence indigenous offenders in a culturally appropriate forum, with an emphasis on allowing Elders and Respected Persons to participate. The offender must be indigenous, while ‘anyone’ is free to choose to use the Marae Youth Courts in New Zealand. In both jurisdictions, the offender cannot hide behind their legal representative, but must interact with the judge. Most Indigenous sentencing courts use a ‘circle court model’ in which participants sit in a circle, with the judge and offender at eye level, with a greater participation from Elders and victims. The aims of the Indigenous sentencing courts are more culturally focused than the New Zealand Marae Youth Courts. The common thread from all jurisdictions is that this process aims to be a sentencing court for the Indigenous people, to improve race relations, reduce Indigenous overrepresentation, and to be more inclusive of the Indigenous community.
The High Court of Australia in R v Fernando was instrumental in laying down sentencing principles that help guide Indigenous offenders. The case holds that consideration of one’s Indigenous background, and potential factors such as poverty and alcoholism, are relevant in the mitigation of one’s culpability in committing an offence. In particular, Fernando emphasizes that it is not about mitigating one’s sentence, but that these factors can shed light on the offender’s circumstances. New Zealand courts could learn from the Australian jurisdiction and, if a relevant case arises, consider adopting similar principles in Indigenous sentencing. This will also clear public misconceptions on ‘special treatment’ given to Māori during sentencing by emphasizing that one’s Indigenous background can be key to understanding the circumstances of the offender when committing the offence.
Another difference between the two jurisdictions is that Indigenous sentencing courts are different to the restorative justice approach New Zealand implements in their Youth Courts. Indigenous sentencing courts have broader aims as the relationship building is between ‘white justice’ and the Indigenous people. Conversely, FGC has a narrower focus between the offender, victim and the community. Indigenous sentencing courts also have broader legal aspirations to decrease alienation that Indigenous people feel in mainstream courts by solidifying greater trust between Indigenous communities and court staff. On the other hand, restorative justice’s micro-level attention to offender-victim relations cannot solve the macro scale of determinants leading to Indigenous overrepresentation. Indigenous sentencing courts may have the potential to transform and change entire race relations between a dominant system and the Indigenous community.
Even though Australian Indigenous sentencing courts are the most established and are more culturally focused, they are not perfect. Although some reports suggest that the courts have reduced recidivism, many evaluation reports had to use anecdotal evidence or interviews, which may be skewed towards the positive. However, the lack of concrete evidence on recidivism should not be sufficient to disregard the Indigenous courts’ effort in ensuring a positive response from all participants in the process.
Such in-depth critiques of indigenous sentencing between the two jurisdictions are not enough to see the bigger picture – whether these approaches can improve the legacy of colonialism upon the indigenous people. Two main issues arise.
Firstly, merely incorporating cultural protocols deprives the authenticity of Indigenous practice. Secondly, both New Zealand Youth Courts and the Australian Indigenous Sentencing Courts remain subservient to the dominant legal system. Jackson argues that marae justice is arguably just another Crown-imposed process. By using the marae as a place for youth justice, it can degrade the mana and the broader purpose of the marae in Māori culture. It should not be seen as an ‘isolated venue’ for the backdrop of justice.
Similarly, in Australia, there are concerns that legislation-controlled Indigenous sentencing courts are another way for them to be led by the colonizers, reducing indigenous autonomy in experimenting with ways of improving the system. Window dressing is another term criminologists use to describe indigenous sentencing. A restricted autonomy gives society the illusion that responses are implemented to address indigenous issues, while simultaneously retaining hegemony in maintaining the status quo.
The startling implication of Indigenous sentencing courts being just another process under state control, or as Khylee Quince puts it, the ‘browning’ of the legal system, is that it ignores fundamental indigenous rights. Durie argues that Maori-specific responses hinder actual progress in its passivity. The FGC and Youth Courts do not meet recognition of the Te Tiriti o Waitangi, especially rights granted under Article Two for Maori to retain tino rangatiratanga over their taonga. Such attempts also draw attention away from the root causes of the issue, especially macro-level issues that colonialism has shaped upon the indigenous people, such as poverty, low educational achievements, and unemployment. Indeed, it is concerning that any real changes are only happening at the very end of criminal justice after an Indigenous person pleads guilty to an offence. However, acknowledgment is given that such broad scale issues cannot be solved by the presence of Indigenous sentencing courts alone.
New Zealand still has a long way to go in establishing culturally focused Indigenous sentencing courts. In 2000, an adult pilot court was established that incorporated restorative justice in the adult court process, but its effectiveness has not been researched extensively. As of right now, Family Group Conferences are primarily focused on youth and restorative justice, which cannot cater to Maori who are culturally disconnected from their identity. If New Zealand does implement Indigenous sentencing courts, restorative justice values may need to be modified to a ‘transformative justice’ approach. This focuses on the transformation of the offender to target and improve their risk factors for offending. Wider societal issues related to the offender are addressed, instead of solely on an individual or community focus. In light of the evaluations of Australian Indigenous sentencing courts, further consideration also needs to be given to how both recidivism and the rehabilitation of the indigenous offender can be achieved, and not just one or the other. The presence of Indigenous sentencing courts alone is not enough to solve the intergenerational marginalization that contributes to indigenous overrepresentation.
Furthermore, there should be a coordinated effort for all sectors of the justice system in targeted programmes, from policing to sentencing. Simultaneously, both governments need to stop putting the safety net at the bottom of the cliff and implement effective policies that improve macro level problems that are at the root of Indigenous overrepresentation. If the solution should come from indigenous people themselves, then indigenous people must feel connected to their cultural identity in order for culturally focused schemes to work. This is only possible if their socioeconomic positions are advanced.
Indigenous sentencing courts are not ‘special treatment’ for Māori, but instead seek to balance the imbalanced power relations imposed upon them through colonisation. We need to realize that policies that reduce Indigenous offending are beneficial to everyone involved.