The appropriate place of Indigenous sentencing courts in the Australian criminal justice system

Abstract

This honours paper was supervised by Professor Mick Dodson. Indigenous sentencing courts have been instituted across the Australian mainland in an effort to improve Indigenous engagement with the criminal court process. The courts invite members of the Indigenous community to give comment during the sentencing of Indigenous offenders and have enabled Indigenous Elders to exercise significant positive social control over offenders. This paper considers the appropriateness of allowing Indigenous defendants a procedure that is not available to other criminal defendants, in the context of the Australian commitment to equality before the law. The paper examines the development and operation of these courts in depth, and then proceeds to consider the appropriateness of Indigenous sentencing courts dealing with sexual offences. Finally, the broader issue of the courts' existence within the Australian criminal justice system is considered, and it is concluded that the courts do not violate the principle of equality before the law due to the disadvantaged position of Indigenous defendants and systemic considerations.