an environment designed to be conducive to establishing a feeling of compassion and understanding and which promotes all participants to speak freely about their experiences relating to the crime. Often the police officer will explain the consequences of future offending to the youth and then the discussion moves to devising an agreement which the offender is legally bound to uphold. Agreements might include providing the victim with an apology, paying monetary compensation or doing some form of work for the victim or community. Outcomes are preferably reached by consensus however the minimum number of people who must agree differs between states and in some states the victim has the right to veto the outcome. In Queensland, the victim has the right to veto the referral to conference entirely. Post-court sentencing programs involve a discussion format similar to pre-court diversionary conferences. New South Wales operates a circle-sentencing program which involves a judge or magistrate, the prosecutor and the defendant’s lawyer in proceedings and in Victoria, the Juvenile Justice Group Conferencing Program is administered by the Mission of St James and St John.
The type and number offences referred to pre-court conferences range from a high volume of minor offences in Western Australia, New South Wales, the Northern Territory and South Australia (the latter jurisdiction also conferences serious offences such as sexual assault), to the considerably fewer conferences convened in Queensland and Canberra which relate mostly to minor offences. The post-court conferences held in Victoria deal with serious crimes by repeat offenders and in New South Wales circle-sentencing has been established specifically to deal with a range of crimes perpetrated by Indigenous people. In
the Northern Territory, post-court conferences are one of several programmes established in lieu of mandatory 28-day detention sentences. Serious offences such as homicide, sexual assault, causing grievous bodily harm, robbery and driving under the influence have been scheduled for exclusion from the program in the Northern Territory.
In line with recommendations made by the Royal Commission into Aboriginal Deaths in Custody, the deconstruction of the formal justice system has invited greater involvement of Indigenous community justice groups and individuals to participate in all stages of the criminal justice system. Indigenous people are now involved as liaisons and interpreters for Indigenous families, as Youth Justice Coordinators convening youth conferences, as consultants to magistrates and judges advising in matters such as sentencing and the suitability of youths to enter into alternative justice arrangements. A growing number of Indigenous organisations also provide venues and activities for youths to fulfil their community service obligations.
The benefits of an Aboriginal presence in criminal proceedings are reflected in Youth Justice Coordinator Symonds’s sentiments that, ‘an intuitive sense of ones Aboriginality… [creates] an automatic comfort zone’. This is further substantiated by research from the Australian Institute of Criminology which found that of the offenders, parents and victims interviewed (indigenous and non-indigenous participants in New South Wales, Queensland and Western Australia), between 96 to 100 per cent said that the process was fair, and 80 to 97 per cent said they were satisfied with the agreement made in the conference.
The increase in cultural sensitivity within the criminal justice system has been effective in contributing towards improved relations between Indigenous people and the Australian legal system. However, a study by Forsythe revealed that re-apprehension rates within a community were only slightly decreased following the introduction of a pre-court diversionary scheme and that in the ten years since the implementation of restorative justice systems, Indigenous people remain overrepresented in criminal proceedings. Factors which contribute to the failings of alternative justice systems for Indigenous youths are that Indigenous people are generally disaffected with all forms of justice system and are therefore less likely to attend conferences and have been more likely to not agree to or not comply with the outcomes of conferences than their non-indigenous counterparts. This would lead police to inevitably be compelled to have repeat offenders brought before the courts.
The restorative justice systems operating in Australia have been effective in returning a certain amount of control to Indigenous people in managing their legal affairs and thus improving Indigenous peoples’ experience within the justice system. It is evident however, that these systems alone are not capable of redressing the disproportionate numbers of Indigenous people in the formal justice system. The overrepresentation of Indigenous Australians in the criminal justice system is inextricably linked to the continuing social disadvantage suffered by Indigenous people and shall only be eliminated through remedying all aspects of inequality.
