Sentencing and Circle Courts

Sentencing in Australia is lenient compared to some other countries, with the emphasis often placed on the possibility of rehabilitation, rather than just punishment for the crime, or protecting the public from the criminal.

Since the late 1990s, changes have been made in mainland states [including the Northern Territory] in the way the law deals with many Aboriginals charged with breaking a law. The aims of these changes are a reduction in Aboriginal distrust of the law, a reduction in the disproportionate numbers of indigenous peoples finding themselves in custody, and providing outcomes which are more likely to prevent re-offending,

In urban areas there are special courts, the first of these being the Nunga Courts in South Australia, to which more courts have since been added. There are Koori Courts in Victoria, Circle Courts in New South Wales, and a Murri Court in Brisbane. There is a further court in Rockhampton  treating Aboriginal people, Torres Strait Islanders and South Sea Islanders all separately by racial or ethnic identity. A Circle Court has also been established in the Pilbara region of Western Australia.

In addition to these new urban courts, new approaches are used when circuit courts travel to remote areas.

Each state has its own rules regarding, amongst other things, what crimes these special courts may deal with and how the local Aboriginal community is involved. The Queensland sentencing act requires Magistrates and Judges to take into account the views of community members when passing sentences.

In some areas of the law, such as sexual offences, indigenous people may prefer not to participate in sentencing.

In the Northern Territory several laws require Judges to take account of payback punishments when sentencing. Australian law does not authorise or encourage traditional payback, but if someone is likely to be speared then they certainly don’t deserve the same whitefella punishment a whitefella would get for the same crime. For this reason, the judiciary is required to seek advice from the local community.

In some courts, the local community can help clarify exactly what happened as well as help decide on an appropriate punishment, and monitor the offender’s progress in terms of rehabilitation.

Side effects of this approach might be reinforcing the authority of elders where this seems to be breaking down, and strengthening a sense of community.