The Role of Australian Indigenous Elders in Court When Sentencing Partner Violence Offenders

Abstract

This paper maps and assesses the role of Australian Indigenous Elders when sentencing partner violence offenders in Indigenous sentencing courts. The paper is based on research that focuses on the courts in New South Wales and Queensland, and on the views of Magistrates, Elders, court workers and domestic violence support workers associated with those courts. The paper begins by firstly giving an overview of the Indigenous sentencing courts in Australia and describing in more detail the different processes of five of the courts: Brisbane, Mt Isa, Rockhampton, Nowra and Dubbo. Next, the paper outlines what feminist and critical race scholars have said about using alternative justice forums to deal with family violence offences. There has been a great deal of debate surrounding the appropriateness of using alternative justice practices such as restorative justice and Indigenous-controlled justice practices, for the resolution of partner, sexual and family violence offences. Those that support the use of alternative justice processes do so because they recognise that victims and the community are given more of an opportunity to participate in the process and voice their concerns. However, some feminist scholars have warned against the use of informal justice practices because they claim such practices cannot correct power imbalances between victims and offenders of family violence, and that ultimately more punitive responses should be adopted despite a victim’s desire to maintain family unity. These debates will be further explored by placing them within a critical race framework. Finally, the chapter will use data collected from 39 interviews and observations at the five court sites to determine what role Elders have in addressing some of the concerns outlined in the abovementioned debates. In particular, the findings will focus on explaining how the role of the Elders and the particularities of the court processes can assist in bringing about changes to an offender’s behaviour.