• Introduction
• Rationale for community involvement
• Types of community involvement
• The Commission’s recommendation

4.1 Facilitating participation by people in the design and delivery of services and institutions that affect them is a fundamental principle of democracy and equality before the law. This principle applies generally to all people in all areas of life, and should underpin all areas of law and policy, not just sentencing. The Commission’s focus in this Report, however, is on Aboriginal people and the sentencing process. So far as the criminal justice system is concerned, the community as a whole has a vested interest in ensuring the system is relevant and effective. Given the alarming number of Aboriginal people coming before the courts, it is clear that the justice system is not as responsive to Indigenous members of the community as it should be. The current overwhelming view, held in Australia and overseas, is that Aboriginal people should play a greater role than at present in developing justice initiatives aimed at reducing the rate at which they appear before the courts. In particular, developments concerning conferencing schemes, from pre-trial to sentencing, and sentencing circles, focus on creating an environment where the Aboriginal community can participate fully in how Aboriginal offenders are dealt with by the courts.

4.2 This chapter discusses conferencing and other measures, both current and proposed, designed to facilitate greater involvement by Aboriginal people in the criminal justice system, and makes recommendations regarding more flexible sentencing practices. Other chapters discuss the involvement of Aboriginal people in other areas of the sentencing process.¹

RATIONALE FOR COMMUNITY INVOLVEMENT

4.3 In the interests of fairness, the criminal justice system must be as truly representative as possible. At every critical point in the exercise and administration of justice, the rights, responsibilities and interests of the victim, the offender and the community, must be considered. Increasing levels of over-representation before the courts and in prison, and higher than average recidivism rates among Aboriginal offenders, indicate that the justice system is inadequately serving the interests of Aboriginal people.

4.4 Many Aboriginal people perceive the justice system to be alienating, discriminatory and irrelevant. As the Commission notes throughout this Report, the behaviour of many Aboriginal offenders, and effective methods of dealing with it, is intrinsically connected to the general life of the community in which they live. Community factors, such as lack of opportunities for education, employment and constructive leisure activities have a direct impact on levels of criminal activity. The only practical way to achieve cultural relevance in the criminal justice system is to involve Aboriginal people in the design and delivery of sentencing options. Participation by Aboriginal communities in sentencing strategies may also be an effective means of empowering communities where the traditional Indigenous authority structures and social cohesion may have broken down, and may ultimately reduce offending. It must be acknowledged that this objective is difficult to achieve and will become more difficult with changing social and economic conditions. However, without a substantial increase in the involvement of Aboriginal communities in the process of dealing with offenders, no improvement is likely.

Broad acceptance of the concept

4.5 The Commission notes that there has been increasingly widespread support for the principle of involving Aboriginal communities in the criminal justice process. Examples of this are set out below.

The Royal Commission into Aboriginal Deaths in Custody

4.6 The Royal Commission into Aboriginal Deaths in Custody (the “RCIADIC”) recommended and encouraged self-determination and community involvement so that services appropriate to the needs of Aboriginal people were delivered.² It concluded that Aboriginal people should be involved in the review, planning and implementation of non-custodial options, employed in program delivery,³ and in developing community policing.⁴ The RCIADIC also recommended that sentencing authorities consult with discrete or remote Aboriginal communities and organisations on the general range of sentences considered appropriate for offences committed by members of the community within the community.⁵

4.7 In its review of the Government’s implementation of the RCIADIC Report, the Aboriginal Justice Advisory Council (“AJAC”) noted that few of the recommendations regarding Aboriginal involvement in service delivery and planning have been implemented.⁶

Other inquiries

4.8 Community involvement is a common thread running through several other reports. The Report by the Human Rights and Equal Opportunity Commission (“HREOC”) on the Separation of Aboriginal and Torres Strait Islander Children from Their Families recommended that Indigenous organisations and communities play a major role in the sentencing of Indigenous offenders.⁷ It argued for respect for self-determination in juvenile justice and welfare matters.

4.9 The importance of focusing on the community to understand the context of, and find solutions for, offending behaviour, was also considered in Reports commissioned by Corrective Services Queensland into delivery of correctional services to Indigenous people in North Queensland.⁸ Arguing that Aboriginal social structures hold the key to social control, and understanding their functioning is essential in attempting to change disruptive and destructive behaviour patterns, the Reports proposed the community justice model,⁹ which has been successfully implemented in many communities.

Government policy

4.10 Governments across Australia have accepted community involvement as a key element in policy formulation and implementation. The Ministerial Summit on Indigenous Deaths in Custody in July 1997, resolved that Ministers, “in partnership with Indigenous peoples” would develop plans for funding and service delivery of Indigenous programs and services to deal with the issues aired at the Summit.¹⁰ In New South Wales, The Government Statement of Commitment to Aboriginal People endorsed “initiatives based on a true partnership with Aboriginal people”, and encouraged Aboriginal involvement in justice system policy and program formulation and program delivery.¹¹ The Social Justice Commissioner has noted, however, that despite the acceptance by governments of the importance of the principle of Aboriginal involvement, it is largely viewed as “aspirational” rather than “essential”.¹²

International experience

4.11 In Canada, numerous inquiries have advocated an expanded role for the Indigenous community.¹³ Increasingly, Canadian courts are recognising the distinctive approach of Indigenous people in dealing with offenders, some having held sessions on Indigenous reserves.¹⁴ In particular, the use of sentencing circles has proved very effective.¹⁵ Other initiatives include the appointment of Indigenous justices of the peace, victim-offender reconciliation or mediation programs, elders’ courts, a youth court, community justice committees and sentencing advisory committees.¹⁶ In New Zealand, family conferencing has its roots in traditional Maori methods.¹⁷ Notwithstanding the caution which must be exercised in wholesale adoption of models based on different Indigenous cultures, there is a developing body of comparative studies on which policy and program development in Australia can draw.¹⁸

Views of the judiciary

4.12 The potential for Aboriginal communities to be involved in sentencing was explored in the Commission’s survey of judges and magistrates in New South Wales. A majority of Local Court magistrates supported the concept, although District Court judges were divided on the issue. Those in favour strongly endorsed a role for Aboriginal communities in providing background information on the circumstances of the offender and offence, advising the court on matters of customary law, having an input into the conditions attached to probation and parole, and conferencing. Some thought that there was scope for the Aboriginal community to advise on appropriate sentences. Some caution was expressed as to the appropriateness of such involvement and its potential for divisiveness. Concern was also expressed regarding the difficulty in ascertaining community views, given the diverse nature of Aboriginal culture, and the potential for injustice if offenders were denied rights as a consequence of community involvement in the sentencing process.¹⁹

4.13 Elsewhere, there is a growing recognition among judges and magistrates of the value of consulting with Aboriginal people regarding sentencing. Examples of informal consultation have occurred in courts in the Northern Territory, Western Australia and Victoria. The President of the Queensland Children’s Court has recommended that Aboriginal elders and respected persons be empowered to participate actively in the judicial process, and that statutory recognition be afforded to them to supervise community-based orders and administer cautions.²⁰

TYPES OF COMMUNITY INVOLVEMENT

4.14 There is potential for significant participation by Aboriginal communities in all areas of criminal justice. Across Australia, examples of Aboriginal community-based initiatives are already operating.²¹ In this section, the Commission does not attempt to discuss all of those initiatives, but highlights some as examples of programs which have the potential to work successfully in New South Wales. It looks at community-based initiatives generally, and conferencing and Circle Sentencing in particular. Many of the programs focus on diversion from arrest and detention, community policing, and prevention and rehabilitation strategies. Others concentrate on input into the actual sentencing process. While the Commission’s focus is on the imposition of sentences and how they are served, it is difficult, and somewhat artificial, to make a distinction between sentencing and other initiatives in this context.

General community-based initiatives

4.15 Across Australia, various programs facilitating Aboriginal input into the criminal justice system are operating. In Victoria, community-based initiatives have existed for some time. Community justice panels, comprising volunteers selected by Aboriginal communities, work with criminal justice agencies. The Koori Justice Program, operated in Victoria by local Aboriginal co-operatives which employ a Koori Justice worker, enables supervision and support for young Aboriginal people in contact with the criminal justice system. Communities are funded to manage young offenders within their own community, providing realistic and culturally appropriate alternatives to incarceration, as well as diversionary programs.²² Panel members may also be called upon to provide input into decisions about appropriate sentences.

4.16 In Queensland, the Local Justice Initiatives Program involves a number of community justice groups, which comprise Aboriginal people elected by communities with a community-based development officer in support.²³ Originally piloted in the remote communities of Palm Island and Kowanyama, but now extending throughout Queensland, the Program aims broadly to address the causes underlying Aboriginal involvement in criminal activity by facilitating consultation between local Aboriginal communities and justice agencies, including the judiciary, the police and local councils.²⁴ The groups have also advised courts about cultural matters during sentencing.²⁵ The advantage of such a Program is that strategies to reduce contact between Aboriginal people and the criminal justice system are developed by Aboriginal people within specific communities, thereby having more relevance and a greater chance of success. AJAC considers that a similar Local Justice Initiative Program should be established in New South Wales as it would “significantly improve the Aboriginal community’s capacity to deal with problems locally”.²⁶ As the needs of communities in New South Wales would be different from those in Queensland, and may only be peripherally relevant to sentencing, it is difficult for the Commission to make a formal recommendation on this point. However, the Commission encourages the Government to consult with AJAC regarding the development of Local Justice Initiatives in New South Wales.

4.17 In Chapter 2, the Commission discussed specific factors that courts may take into account when sentencing some Aboriginal offenders. Information about such matters may be raised by counsel, or the court may request a pre-sentence report. Aboriginal communities may be consulted in gathering information to present before the court, but there is no formal requirement or mechanism for doing so. In Pitjantjatjara Lands in South Australia, magistrates may hear representations on matters of customary law in relation to penalty from a lawyer representing the Pitjantjatjara Council on behalf of the community.²⁷ Several courts, including local courts in New South Wales, have Aboriginal Court Liaison Officers whose functions include liaising between the judiciary and Aboriginal communities in order to increase awareness among judges of Aboriginal community views.²⁸ In New Zealand, an offender appearing for sentence may request the court to allow witnesses to speak about the offender’s ethnic or cultural background and the way it may relate to the commission of the offence.²⁹

AJAC and community involvement

4.18 Established in New South Wales in 1993 following a recommendation of the RCIADIC, AJAC is a central body which provides advice to the State Government, through the Attorney General, on the impact of the law on Aboriginal people,³⁰ and develops initiatives aimed at making the justice system more responsive to the needs of Indigenous Australians.³¹ AJAC also monitors the Government’s implementation of the RCIADIC Report.³² In addition to the central agency, there are six regional councils in New South Wales comprising members from Aboriginal communities across the State. It is therefore well-placed to bring an Indigenous community perspective to Government decision-making.

Conferencing

Conferencing generally

4.19 “Conferencing” describes participation by community members in the way the criminal justice system deals with offenders.³³ Participation can involve any number of community members ranging from a handful of selected individuals to a large number of experts, community elders, and families and friends of both offenders and victims. At different points the emphasis may vary, focusing on the community’s interest in restitution, reparation and restoration, as well as the role and importance of both the offender and the victim. Ideally, conferencing should reconcile the aim of re-connecting offenders with their offences and their community, with the goal of increasing the participation of victims in the criminal justice system. There are two general variants of conferencing schemes, namely family group conferences and those involving mediation between offenders and victims. The two groups are not mutually exclusive and many variations occur.

4.20 Conferencing may occur at one of three stages in the criminal justice system:

• before trial, often as part of a police cautioning power, as a diversion scheme or alternative to prosecution;
• as part of the sentencing process, as an assistance to the court in determining an appropriate sentence; and
• after sentencing, on occasions when victims and offenders desire reconciliation, compensation or some form of future contact.

Youth conferencing in New South Wales

4.22 In New South Wales, youth justice conferences are conducted under the Young Offenders Act 1997 (NSW), which establishes the legislative base for an integrated and accountable system of administering justice for young people.³⁶ The Act applies to young people aged between 10 and 18 who commit a summary offence or an indictable offence which may be punished summarily.³⁷ It provides for a hierarchy of intervention for young offenders, from police warnings and cautions, conferencing and court appearances. The decision to hold a youth justice conference may be made by the police, the Director of Public Prosecutions or by the court at any time during proceedings, including sentencing.³⁸ Factors affecting the decision will include the seriousness of the offence, the degree of violence involved, the harm caused to the victim and the attitude of the offender.³⁹ A conference may be held only where the offender has admitted guilt (after receiving adequate, independent legal advice), and agrees to attend a conference.⁴⁰ The victim may choose whether or not to participate, or may elect to send a representative.⁴¹ Where the victim decides against participation, a conference may still be held.

4.23 Apart from the offender and the conference convenor, participants in a youth justice conference may include the victim (or a representative), a support person for both the victim and the offender, police representatives, a legal advisor for the offender, a probation officer, an interpreter and an advocate to advise on cultural matters (such as an Aboriginal elder).⁴² A mutual resolution is agreed, and a plan of action settled upon, which may include an apology, compensation, reparation, or any other undertaking.⁴³ Youth conferencing aims to divert young offenders from the courts and from prisons, instil in them a sense of responsibility for the consequences of their actions and involve them, the victims and the community in repairing some of the damage caused by criminal acts.⁴⁴

Youth conferencing and Aboriginal offenders

4.24 Juvenile conferencing schemes have, to varying degrees, acknowledged the needs of Aboriginal juveniles, who are vastly over-represented in the juvenile justice system. They have adopted strategies such as using Aboriginal conference administrators and convenors, ensuring procedures recognise behaviours, relationships, values and norms characteristic of Aboriginal offenders and their families.⁴⁵

4.25 However, many commentators have argued that such attempts to make conferencing culturally appropriate are superficial, and that the benefits of diversionary conferencing have not been enjoyed by Aboriginal juveniles. Evaluation has consistently indicated the disparity of rates of access of Aboriginal youth to conferencing as a diversionary strategy.⁴⁶ Criticisms include inadequate consultation with Aboriginal communities in the design and administration of schemes; insufficient allocation of resources or flexibility in design to permit meaningful participation; the extent of police involvement and the reluctance of police to refer young Aboriginal offenders to conferencing; limitations on access for more serious offenders; and lack of access to legal advice and the severity of the penalties involved.⁴⁷

4.26 A recent report on the operation of the Young Offenders Act 1997 (NSW) gives some weight to these criticisms.⁴⁸ That review was partly a response to a concern by the Youth Justice Advisory Council that young Aboriginal people were not being diverted from the court system at the same rate as other offenders.⁴⁹ The report revealed that the diversion rate of all offenders under the Act (that is, the number of young people dealt with by way of caution and conferencing rather than court proceedings) was 37.22%.⁵⁰ A higher diversion rate was expected based on experience in New Zealand⁵¹ and South Australia. The diversion rate was lower still (24.38%) for Aboriginal offenders.⁵² A total of 1, 267 conferences were held during the 1998-99 financial year. Of these, 14% were recorded as relating to young Indigenous people.⁵³ Nine barriers to compliance with the existing provisions of the legislation were identified, the major ones being that police were not adequately resourced or informed about the legislation, and were not using their discretion to refer matters away from the courts.⁵⁴ The report makes a number of recommendations concerning improvements to police practice, including greater accountability regarding the numbers of Aboriginal youth referred away from the court system.⁵⁵

4.27 However, while the numbers of young people being referred to conferencing may be lower than expected, those that have been referred have recorded a high degree of satisfaction with the process. The New South Wales Bureau of Crime Statistics and Research (“BOCSAR”) conducted a survey of victims, offenders and offenders’ support persons involved in youth conferences held under the Young Offenders Act 1997 (NSW) and the Reintegrative Shaming Experiment in the Australian Capital Territory, between March and August 1999.⁵⁶ Of the New South Wales survey sample, 4.7% of victims, 24% of offenders, and 18.5% of offenders’ support persons identified as being Indigenous.⁵⁷ The vast majority of all those surveyed were happy with the procedures before and during the conference, believed that it was either “somewhat fair” or “very fair” to the offender and the victim, felt that they were treated with respect and listened to during the conference, and were satisfied with the outcome plan.⁵⁸

4.28 Many of the factors identified as limiting the effectiveness of youth conferencing, particularly with regard to Aboriginal offenders, relate to pre-trial diversion and other matters not related to sentencing. While the Commission is limited in this Report to considerations of sentencing, the success of conferencing as an effective sentencing tool depends on a continuum of factors working together. The Commission is of the view that much can be learnt from criticisms of youth conferencing in developing a successful regime potentially applicable to all Aboriginal offenders, not just juveniles. It would appear that the key element, apart from improving the level of resources and education about conferencing, is facilitating meaningful input from Indigenous communities in the development and operation of conferencing schemes. The Commission makes recommendations regarding conferencing for Aboriginal offenders at paragraphs 4.35-4.41. The following paragraphs illustrate examples of Indigenous conferencing schemes in New Zealand and Canada which have met with some success.

New Zealand model

4.29 Much of the impetus for conferencing stems from the New Zealand model of family group conferencing operating under the Children, Young Persons and their Families Act 1989 (NZ). Though applicable to all juveniles, the model was designed to reduce over-representation of Maori youth in custody. Like the youth conferencing scheme in New South Wales, the New Zealand model can operate either as a diversionary or a pre-sentence scheme. It is largely driven by Maori people, was developed following extensive consultation with Maori communities, and reflects Maori traditional systems of justice. Participation of the whanau (extended Maori family) is integral to family group conferencing, exercising their traditional role in conflict resolution and reaching reconciliation between victim and offender.⁵⁹ The family group is widely defined, and includes an adult with whom a young offender has a “significant psychological attachment”. The model is generally regarded as successful in diverting young people from the court system.⁶⁰

Circle Sentencing in Canada

4.30 The “Circle Sentencing” scheme was devised by judges of the Territorial Court of Yukon in Canada, and first conducted in 1992.⁶¹ It is a community conferencing scheme, again based on the principle of restorative justice, which operates as a pre-sentence option for adult offenders. Sentencing circles operate on the understanding that crime affects whole communities, not just victims and offenders. Originally, Circle Sentencing was oriented towards Canada’s Indigenous people, but has since been adopted by both Indigenous and non-Indigenous people, in traditional and urban settings. Circle courts (as they are sometimes known) constitute an informal process by which community members contribute to sentencing decisions involving other community members. Participants may include a judge, counsel, court recorders, the offenders and community members (elders and others); and usually include community workers, police officers, the victim and family (including extended) members.

4.31 Matters are referred to a sentencing circle at the request of an offender or the offender’s legal representative. An offender’s eligibility for inclusion is assessed by criteria variously established in several reported cases and judicial pronouncements.⁶² Unlike other conferencing schemes, Circle Sentencing is not confined to less serious offences. An offender must normally plead guilty and accept responsibility for the offence to be able to take part in a sentencing circle. Procedures vary, but the purpose of discussion is to bring to the circle the best available information from which an appropriate sentence can emerge, to be determined by the judge. Usually a sentencing plan is devised by participants, and community resources used to carry it out. Goals include reduced recidivism and reliance on incarceration, victim empowerment and satisfaction, victim-offender reconciliation, and community healing and regeneration. Though sanctions focus on community-based options, commentators have noted that taking responsibility for the offending behaviour, facing community and victim, and performing sometimes intrusive and stringent conditions can be more effective than imprisonment.⁶³

Circle courts generally supported

4.32 Sentencing circles have received enthusiastic support from within the Canadian judiciary and Indigenous communities and beyond. AJAC attributes this success to the capacity of circle courts to merge the values of Indigenous people with the structures of the western justice system.⁶⁴ AJAC has argued that involving the victim, offender and the community greatly improves the potential for developing workable solutions to crime and addressing the underlying causes of criminal behaviour. Issues of concern have also been raised in Canada and abroad. They include the need for guidelines for the establishment of circles to ensure consistency and procedural safeguards, the criteria by which to select appropriate cases, the role of and impact on victims, the degree to which sentencing circles truly reflect Indigenous traditions and values, the cost involved,⁶⁵ and the ability of communities to implement the sentencing plans devised.⁶⁶

Proposed trial in New South Wales

4.33 In response to a proposal by AJAC to trial Circle Sentencing in New South Wales, a Working Party was established recently, which developed a model for a three-year trial to be established in three Aboriginal communities.⁶⁷ Determining which communities should be selected would depend on the level of support from the local Aboriginal population, magistrate, Aboriginal Legal Services, and whether the requisite community infrastructure was in place. While the Working Party was of the view that procedural details should be left for local communities, particularly Aboriginal communities, to determine themselves, the Working Party proposed the following guidelines:

• a Community Justice Committee, comprising respected members of the Aboriginal community, would be established in each of the trial locations to oversee the Circle Sentencing process;⁶⁸
• a defendant may apply to a court for entry to a sentencing circle after a plea or a determination of guilt has been made;
• a defendant’s suitability for entry would be assessed by two tests: one imposed by the court and one imposed by the local community, both of which must be satisfied;
• if the defendant meets the criteria for the court-applied test,⁶⁹ the application would be forwarded to the local Community Justice Committee to determine the defendant’s acceptability;
• in determining a defendant’s eligibility, the Community Justice Committee would consider matters such as the type of offence, the attitude and community support of the offender, and the views of and impact on the victim and the community as a whole;
• if the Community Justice Committee rejects the application, the matter would be sentenced in a regular court;
• if the application is accepted, a sentencing circle would be formed, comprising a magistrate, the offender, the victim, family and/or support people for the victim and the offender, legal representatives, community elders and any other relevant people;⁷⁰
• during the Circle Sentencing process, the nature, context and impact of the offence would be explained and discussed, a plan developed on how the wrong may be redressed, and a sentence passed; and
• the defendant’s support group would assist the offender to complete the sentence, report progress to the Community Justice Committee, who would in turn report to the court.

THE COMMISSION’S RECOMMENDATION

4.35 As the Commission noted earlier, various attempts to introduce conferencing schemes in New South Wales have met with considerable criticism. Objections to the schemes, however, have largely centred on the way in which they have been conducted, in particular the level of police involvement and certain issues of procedural fairness. Even critics of the schemes agree with the basic concept of conferencing and circle sentencing, considering them to be an effective and culturally sensitive way of involving and empowering the Aboriginal community in the justice system.⁷¹

4.36 The success of youth conferencing in New Zealand and Circle Sentencing in Canada demonstrates the potential for such schemes to work here. Throughout this Report, the Commission notes the inappropriateness of importing schemes from overseas and applying them in New South Wales without regard to the needs and wishes of the local community. Consequently, the Commission does not recommend the adoption of the New Zealand and Canadian schemes unamended. In comparing the success of these schemes with the criticisms of other initiatives, the Commission observes several key elements for successful conferencing and Circle Sentencing of Aboriginal offenders.⁷² They are:

• the need for “grass roots” involvement of Aboriginal communities in program design and delivery, rather than a “top down” approach;
• a genuine commitment on the part of government and justice officials to negotiate with Aboriginal communities;
• education for judges and magistrates on the availability and operation of conferencing and Circle Sentencing schemes; and
• a broad and flexible legislative base for the schemes to ensure a degree of consistency and procedural fairness.

Extending conferencing to adult offenders

4.37 In its Report on Sentencing, the Commission made the following recommendations regarding conferencing for all offenders:

• where participation of a victim is a component of a conference, the victim must freely consent to taking part in the proceedings, although refusal to take part need not prevent the proceedings taking place;
• an offender must freely consent to taking part in any conference;
• an offender must have the opportunity to seek and receive proper legal advice before consenting to take part in a conference;
• an offender must admit guilt before being able to take part in a conference; and
• there should be a prohibition on the publication of proceedings of any conference, and any disclosures made during such proceedings should be inadmissible in any judicial or quasi-judicial proceedings other than the sentencing hearing to which it relates.⁷³

Support for Circle Sentencing trial

4.39 Unlike adult conferencing, Circle Sentencing is targeted specifically towards Aboriginal communities, and may operate on a less formal basis. The Commission supports the recommendations made by AJAC to conduct trials of Circle Sentencing in communities which welcome and support the concept and have the infrastructure to enable the trials to have a greater chance of success. It is also essential for the success of the trials that they be designed and developed by Aboriginal community members.

4.40 The Commission understands that at least one sentencing circle has already been successfully conducted in a Local Court in western New South Wales.⁷⁴ That matter involved an Aboriginal juvenile repeat offender, for whom youth conferencing had proved unsuccessful.⁷⁵ The Magistrate conducted an informal session at a local community hall. The session was attended by the offender, the offender’s parents and older members of the extended family, the prosecutor and other legal and administrative staff. All participants had the opportunity to speak, with the discussion flowing around their views on crime, the commitment of the group to the offender remaining in the community, how re-offending could be prevented and how the offender could be supported by the community. The actual sentencing remained at the Magistrate’s discretion. All adult participants considered the exercise to be worthwhile. The Magistrate considered the positive aspects to be the involvement and commitment of the young person, the family and the community, and the acceptance of responsibility by them for parts of the process, and the flexibility to consider issues beyond the case at hand that place the crime in context.⁷⁶

A legislative base

4.41 Should the trials of adult conferencing and Circle Sentencing prove successful, and the Government proposes to include them as an option in the justice system on a continuing basis, they should be underpinned by legislation in order to ensure a degree of consistency and some procedural safeguards. As the Commission recommended in its Sentencing Report,⁷⁷ that legislative base should not be at all prescriptive, but should be broad and flexible enough to enable the court⁷⁸ to have a discretion to refer matters to conferencing or to Circle Sentencing, whichever may be more appropriate in the circumstances. Legislation should also contain the principles referred to in paragraph 4.37 above. The Commission considers it to be crucial, however, that trials of conferencing and/or Circle Sentencing proceed before a legislative structure is developed. This would help to guard against the imposition of a “top down” approach, and ensure that the legislation follows the model that works best. It is also vital that Aboriginal communities have input into the design of any legislation. Accordingly, the Commission does not make a recommendation at this point concerning such legislation.

Recommendation 2

Pilot schemes for Circle Sentencing and adult conferencing should be instituted in consultation and collaboration with Aboriginal communities.

1. For example, the role of Aboriginal customary law in sentencing (Chapter 3), developing appropriate sentencing options (Chapter 5) and informing the court on Aboriginal language and culture (Chapter 7).

2. Australia, National Report of the Royal Commission into Aboriginal Deaths in Custody (Five Volumes) (E Johnston, Royal Commissioner, AGPS, Canberra, 1991-92) (the “RCIADIC Report”): see particularly Recommendation 188 (self-determination to apply to the design and implementation of policies and programs); and Recommendation 192 (programs to be delivered either by Aboriginal organisations or following consultation with them).

3. RCIADIC Report, Recommendations 111, 113, 116 and 114.

4. RCIADIC Report, Recommendation 214.

5. RCIADIC Report, Recommendation 104.

6. NSW, AJAC, Review of the NSW Government Implementation of the Recommendations of the Royal Commission into Aboriginal Deaths in Custody (September 2000) at 18-22.

7. Australia, HREOC, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997).

8. S Blackman and B A Clarke, Aboriginal and Islander Perceptions of the Delivery of Correctional Services to Indigenous People in North Queensland (Yalga-Binbi Institute for Community Development, Thuringowa Central, 1991); G Bimrose and J Adams, Review of Community Justice Groups: Kowanyama, Palm Island, Pormpuraaw (Yalga-Binbi Institute for Community Development, Thuringowa Central, 1995).

9. See para 4.16.

10. The Outcomes Statement was signed by representatives of all Australian Governments, with the sole exception of the Northern Territory (4 July, 1997).

11. NSW Government, Statement of Commitment to Aboriginal People (November 1997) at 4-5, 27 and 41.

12. Australia, Aboriginal and Torres Strait Islander Social Justice Commissioner, Annual Report 1999 (Dr W Jonas, Sydney, 2000) (“Social Justice Commissioner Report (1999)”) «www.hreoc.gov.au/ sj_report99».

13. See para 1.31.

14. The John Howard Society of Alberta, “Toward a Separate Justice System for Aboriginal Peoples” (1992) «http://www.acjnet.org/docs/ separjhs.html».

15. See below para 4.30-4.31.

16. The John Howard Society of Alberta, “Toward a Separate Justice System for Aboriginal Peoples” (1992) «http://www.acjnet.org/docs/ separjhs.html».

17. See below para 4.29.

18. See eg, K M Hazlehurst (ed), Perceptions of Justice: Issues in Indigenous and Community Empowerment (Avebury, Aldershot, 1995).

19. See, eg, B Lulham SM, Submission at 4; G Hiskey, Submission at 21.

20. Queensland, Children’s Court, Annual Report 1996-1997 at 24.

21. See below para 4.15-4.16. See also, for example, W Tyler, “Community-based Strategies in Aboriginal Criminal Justice: The Northern Territory Experience” (1995) 28 Australian and New Zealand Journal of Criminology 127; Australia Aboriginal and Torres Strait Islander Social Justice Commissioner, Fourth Report (M Dodson, AGPS, Canberra, 1996) (“Social Justice Commissioner Report (1996)”) at 19-66.

22. Social Justice Commissioner Report (1996) at 52-53.

23. Social Justice Commissioner Report (1996) at 53-61.

24. For a detailed description of the Local Justice Initiative Program: see Queensland, Department of Aboriginal and Torres Strait Islander Policy and Development, Local Justice Initiatives Program, Program Description and Funding Guidelines (May 1996); Queensland, Department of Aboriginal and Torres Strait Islander Policy and Development, Local Justice Initiatives Program, Interim Assessment of Community Justice Groups, Report (May 1998). See also P Chantrill, The Kowanyama Justice Group: A Study of the Achievements and Constraints on Local Justice Administration in a Remote Aboriginal Community paper presented at the Australian Institute of Criminology Occasional Seminar Series (Canberra, 11 September 1997) «www.aic.gov.au/conferences/occasional/chantrill.htm».

25. The role of Queensland community justice groups in advising courts on sentencing could be entrenched if legislation currently before the Queensland Parliament is passed. Presently, sentencing legislation provides that the court may hear submissions on sentence from community justice groups, but only at the request of either party or the court. The Penalties and Sentences and Other Acts Amendment Bill 2000 (Qld) provides for adult and juvenile sentencing legislation to be amended to enable community justice groups to make submissions to the court of their own volition, on matters such as cultural and historical issues and available sentencing options in the offender’s community, when Aboriginal offenders are being sentenced: see Queensland, Parliamentary Debates (Hansard) Legislative Assembly, 1 June 2000 at 1539.

26. AJAC, Letter to the Executive Director of the NSWLRC (16 August 2000).

27. G Hiskey, “Justice in the North-West Lands: On Circuit in the Pitjantjatjara Lands” (1992) 14(9) Law Society Bulletin 18.

28. See para 7.13-7.15 for a discussion on the role of ACLOs.

29. Criminal Justice Act 1985 (NZ) s 16.

30. For example, AJAC has recently conducted reviews of the effect on Aboriginal people of offensive language and conduct laws, and the impact on young Aboriginal people in Moree and Ballina of the Children (Protection and Parental Responsibility) Act 1997 (NSW).

31. For example, AJAC recently released a Discussion Paper proposing the introduction of Circle Sentencing in New South Wales as an option for the Government to consider: see para 4.32-4.34.

32. See para 1.12.

33. For a comprehensive discussion of examples of conferencing and their advantages and disadvantages, see New South Wales Law Reform Commission, Sentencing (Discussion Paper 33, 1996) (“NSWLRC DP 33”) at para 9.65-9.95, and New South Wales Law Reform Commission, Sentencing (Report 79, 1996) (“NSWLRC Report 79”) at para 12.1-12.18. See also C Alder and J Wundersitz (eds), Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? (AIC, Canberra, 1994); and J Hudson et al (eds), Family Group Conferences: Perspectives on Policy and Practice (Federation Press, Sydney, 1996).

34. See J Braithwaite, Crime, Shame and Reintegration (Cambridge University Press, Melbourne, 1989).

35. For example, under the Young Offenders Act 1997 (NSW), a court must deal with these matters rather than a youth justice conference: s 8.

36. Similar schemes for juvenile offenders operate in other Australian jurisdictions, eg, the Young Offenders Act 1993 (SA) Pt 2 Div 3; Young Offenders Act 1994 (WA) Pt 5 Div 2 and 3; and the Juvenile Justice Act 1992 (Qld) Pt 1C and s 18F(5). This list is not exhaustive.

37. Under Part 9 of the Criminal Procedures Act 1986 (NSW): see Young Offenders Act 1997 (NSW) s 8. Such offences may include assault, theft or other property offences.

38. Young Offenders Act 1997 (NSW) s 38 and s 40.

39. Young Offenders Act 1997 (NSW) s 37(3) and s 40(5).

40. Young Offenders Act 1997 (NSW) s 36 and s 40(1).

41. Young Offenders Act 1997 (NSW) s 45(2)(b) and s 47(1)(i) and(j).

42. Young Offenders Act 1997 (NSW) s 47 and s 48.

43. Young Offenders Act 1997 (NSW) s 52.

44. Young Offenders Act 1997 (NSW) s 34.

45. See, eg R Welch and K Symonds, “Family Conferencing for Young Aboriginal Offenders” paper presented at AIC conference, Juvenile Crime and Juvenile Justice, Towards 2000 and Beyond (Adelaide, 26-27 June 1997); L Kelly and E Oxley, “A Dingo in Sheep’s Clothing? The Rhetoric of Youth Justice Conferencing” (1999) 4(18) Indigenous Law Bulletin 4.

46. Social Justice Commissioner Report (1999) at Chapter 5; C Cunneen, “Community Conferencing and the Fiction of Indigenous Control” (1997) 30 The Australian and New Zealand Journal of Criminology 292; H Blagg, “A Just Measure of Shame?: Aboriginal Youth and Conferencing in Australia” (1997) 37 British Journal of Criminology 481; L Kelly and E Oxley, “A Dingo in Sheep’s Clothing? The Rhetoric of Youth Justice Conferencing” (1999) 4(18) Indigenous Law Bulletin 4.

47. See Social Justice Commission Report (1999) at Chapter 5; C Cunneen, “Community Conferencing and the Fiction of Indigenous Control” (1997) 30 The Australian and New Zealand Journal of Criminology 292; H Blagg, “A Just Measure of Shame?: Aboriginal Youth and Conferencing in Australia” (1997) 37 British Journal of Criminology 481; L Kelly and E Oxley, “A Dingo in Sheep’s Clothing? The Rhetoric of Youth Justice Conferencing” (1999) 4(18) Indigenous Law Bulletin 4.

48. N Hennessy, Review of Gatekeeping Role in Young Offenders Act 1997 (NSW), (Report to the Youth Justice Advisory Committee, October 1999) (the “Hennessy Report”).

49. Hennessy Report at 7 and 19.

50. Hennessy Report at 19-20.

51. See para 4.29.

52. Hennessy Report at 19-20. Aboriginal offenders comprised 12.85% of all young people dealt with under the Young Offenders Act 1997 (NSW): Hennessy Report at 7 and 19.

53. Although, as information regarding cultural background was inconsistently recorded, this number could be higher: Hennessy Report at 23. The Report also noted that, of the 710 people who successfully completed an outcome plan following conferencing, 13% were recorded as being Aboriginal: Hennessy Report at 23.

54. Hennessy Report at 33-63.

55. Hennessy Report, List of Recommendations at 2-5.

56. L Trimboli, An Evaluation of the NSW Youth Justice Conferencing Scheme (BOCSAR, Sydney, April 2000) (“BOCSAR Youth Justice Conferencing Evaluation”).

57. BOCSAR Youth Justice Conferencing Evaluation at 27.

58. BOCSAR Youth Justice Conferencing Evaluation at vii.

59. G Maxwell and A Morris “The New Zealand Model of Family Group Conferences” in Alder and Wundersitz (eds), Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism; Social Justice Commissioner Report (1996) at 42-45.

60. The Hennessy Report states that, in 1996, 85% of juvenile matters under the Children, Young Persons and their Families Act 1989 (NZ) were dealt with by way of warnings or cautions, 13% by family group conferences, and only 1.8% finalised by a court: at 7.

61. For an examiniation of Circle Sentencing, see: R Ross Duelling paradigms? Western Criminal Justice Versus Aboriginal Community Healing (Conference Paper, Canadian Appellate Court Seminar, National Judicial Institute, 1994); J Nightingale “Community-based Sentencing of Aboriginal Offenders” (1997) 9(7) Judicial Officers Bulletin 49; C LaPrairie, “Altering Course: New Directions in Criminal Justice, Sentencing Circles and Family Group Conferences” (1995) Australian and New Zealand Journal of Criminology 78; J V Roberts and C LaPrairie, “Sentencing Circles: Some Unanswered Questions” (1996) 39 Criminal Law Quarterly 69.

62. For example R v Moses [1992] 3 CNLR 116 (Y TTerr Ct); R v Webb [1993] 1 CNLR 148 (Y TTerr Ct); R v Cheekinew (1993) 80 CCC (3d) 143; R v Morin (1994) 1 CNLR 150 (Sask QB); and R v Joseyou nen [1995] 6 WWR 438.

63. D Kwotchka, “Aboriginal Injustice: Making Room for a Restorative Paradigm” (1996) 60 Saskatchewan Law Review 153 at 165.

64. NSW, AJAC, Circle Sentencing: Involving Aboriginal Communities in the Sentencing Process (Discussion Paper, 1999) (“AJAC Circle Sentencing Paper”).

65. AJAC Circle Sentencing Paper at Chapter 8.

66. See C La Prairie, “Altering Course: New Directions in Criminal Justice, Sentencing Circles and Family Group Conferences” (1995) Australian and New Zealand Journal of Criminology 78 at 87-90.

67. For a detailed description of the model, see AJAC Circle Sentencing Paper at Chapter 10.

68. The Community Justice Committee would be assisted by a local Aboriginal Court Liaison Officer. Having such a Liaison Officer would be a prerequisite for inclusion in the trial.

69. To be eligible for Circle Sentencing under the proposal, a defendant’s crime must be one that may be finalised in the Local Court, carry a term of imprisonment as a likely outcome, and not be a sexual offence.

70. Clearly, participants in the circle would differ depending on the nature of each case.

71. See, eg, Social Justice Commissioner Report (1996) at 199 and Social Justice Commissioner Report (1999) at Chapter 5.

72. The Commission refers here to the success of conferencing in the sentencing context only, and does not discuss pre-trial diversion by police or pre-sentencing diversion by courts.

73. NSWLRC Report 79, Recommendations 73-78.

74. Information on this matter was provided to the Commission by the Magistrate concerned. Due to the offender being a juvenile, any further information is confidential.

75. As this matter involved a juvenile, and did not involve the victim, it did not fit the generally accepted model of a sentencing circle, but drew on the principles set out in the AJAC Circle Sentencing Discussion Paper, as amended to suit a juvenile offender.

76. For example, the link between juvenile crime and the availability of alcohol to juveniles, and the lack of facilities for young people in rural areas which can lead to chronic boredom.

77. NSWLRC Report 79, Recommendation 73.