The Elders Know...the White Man Don’t Know: Offenders views of the Nowra Circle Court

Abstract

This article highlights the findings from the first in-depth qualitative study of Aboriginal offenders’ experiences with Circle Court.1 Indigenous sentencing courts began in Australia in 1999, and there are more than 50 courts today.2 They were established to increase trust between Indigenous people and white justice, and to strengthen Indigenous communities. All courts use Australian criminal law, not customary law; sentence Indigenous people who have pleaded guilty; and involve Elders, although a judicial officer has the final say in sentencing.3 Jurisdictional variation is strongly evident4 in how and why each court emerged; the volume of cases and kinds of offences heard; and the number, role, and financial support of the Elders. This article focuses on Circle Courts in New South Wales. Research in New South Wales comes to differing conclusions about whether Circles reduce re-offending. Fitzgerald’s quantitative study, which analysed Circles from 2002 to 2006, shows no differences in time to re-offend for people sentenced in Circle or regular courts.5 The Cultural and Indigenous Research Centre’s (‘CIRCA’) qualitative study, which draws on interviews of Elders and court staff, suggests that Circles do reduce re-offending.6 We argue that quantitative research on re-offending needs to take a longer term and more holistic perspective. Desistance from crime takes time: it is a process, not an event.7 The concept of pathways towards desistance is a good way to understand Indigenous pathways into and out of crime.