Indigenous sentencing courts: Towards a theoretical and jurisprudential model

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Title Indigenous sentencing courts: Towards a theoretical and jurisprudential model
Author Marchetti, Elena Maria; Daly, Kathleen
Journal Name Sydney Law Review
Editor Ivan Shearer
Year Published 2007
Place of publication Rozelle, N.S.W.
Publisher Lawbook Co
Abstract Since 1999, a number of Indigenous sentencing courts have been established in Australia that use Indigenous community representatives to talk to a defendant about their offending and to assist a judicial officer in sentencing. The courts are often portrayed as having emerged to reduce the over-representation of Indigenous people in the criminal justice system and to address key recommendations made by the Royal Commission into Aboriginal Deaths in Custody, in particular, those centred on reducing Indigenous incarceration, and on increasing the participation of Indigenous people in the justice system as court staff or advisors. They are also said to reflect partnership practices that were recommended in Justice Agreements made throughout Australia between state governments and Indigenous organisations. In this article, we argue that these courts have broader aims and objectives in that they seek to achieve a cultural and political transformation of the law, which is not as evident in other new justice practices such as restorative justice or therapeutic jurisprudence. There is a great deal of variation in the way the Indigenous sentencing courts have been established in each Australian State and Territory and in the practices they use. Despite the variations we show that the courts have common goals: to make court processes more culturally appropriate and to increase the involvement of Indigenous people (including the offender, support persons and the local community) in the court process. Although advocates of new justice practices associate Indigenous sentencing courts with restorative justice and therapeutic jurisprudence, we argue that while they have some elements in common, Indigenous courts have distinct aims and objectives. By analysing practices, protocols and other empirical materials, we show why Indigenous sentencing courts deserve a unique theoretical and jurisprudential model and why they are better viewed as being in a category of their own.
Peer Reviewed Yes
Published Yes
Publisher URI
Copyright Statement Copyright 2007 University of Sydney. The attached file is reproduced here in accordance with the copyright policy of the publisher. Please refer to the journal's website for access to the definitive, published version.
Volume 29
Issue Number 3
Page from 415
Page to 443
ISSN 0082-0512
Date Accessioned 2007-11-19
Date Available 2015-02-19T05:56:49Z
Language en_US
Research Centre Key Centre for Ethics, Law, Justice and Governance
Faculty Arts, Education and Law
Subject PRE2009-Jurisprudence and Legal Theory
Publication Type Journal Articles (Refereed Article)
Publication Type Code c1

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