Griffith University, Griffith Law School
For approximately fifteen years, Indigenous sentencing courts have been providing an avenue for Indigenous offenders, communities, and in some cases, victims, to have a greater voice in a sentencing process. Elders or Community Representatives work together with a judicial officer in understanding an offender’s behaviour, and in determining what penalty should be imposed to not only punish the offender but to assist in their rehabilitation. In all jurisdictions apart from Victoria, breaches of family and domestic violence orders can be referred for sentencing in an Indigenous sentencing court. Koori Court legislation in Victoria currently excludes breaches of intervention orders on the advice of the Statewide Working Group that initially established the Koori Courts, due to the complexity of such matters and the likelihood that they would not be able to be resolved in a collaborative manner. Feminist legal scholars have argued that the presence of gendered power imbalances in hearings concerning family and domestic violence make alternative justice processes, that are often less formal than a conventional justice process, unsuitable for victim participation. Despite these views research has found that Indigenous sentencing courts, while not well equipped to eradicate the presence of power imbalances between an offender and victim during a hearing, do attempt to address imbalances of power through ‘shaming’ the offender in culturally appropriate ways. This paper focuses on the experience of victims of intimate partner violence (IPV) during such hearings. Firstly, it traces the extent to which victims of family and domestic violence participate in Indigenous sentencing courts in different jurisdictions. Secondly, using data collected from 29 interviews with victims of IPV offences, it explores whether allowing victims to participate in a process that includes Indigenous cultural knowledges and values may help increase procedural fairness for those victims.
Professor Elena Marchetti is a Research Professor in the Griffith Law School, Griffith University and a member of the Griffith Criminology Institute and Law Futures Centre. Her research examines the justice experiences of Indigenous Australians in the criminal justice system, how to better accommodate the justice needs of victims of Indigenous partner violence, and what methods should be used to evaluate Indigenous-focused criminal justice processes to better reflect the Indigenous-centric nature of the programs. She was awarded an Australian Research Council, 5-year Australian Research Fellowship in 2009 and an Australian Research Council, 4-year Future Fellowship in 2014.