Other Relevant Policy Initiatives/Documents

Report of the Committee into Aboriginal Customary Law - Northern Territory Law Reform Committee (2004)

Recommendations include establishing alternative sentencing options with more community involvement and taking better account of customary law.  There has been no formal government response to this Report. 

Managing Prisoner Growth in the NT - Options Paper (2006)

The NTLAChas collaborated with Aboriginal Legal Service providers and the Offender Aid and Rehabilitation Service (OARS) inthe document Managing Prisoner Growth in the NT - Options Paper (2006).   NTLAC expresses concern at the rising rates of incarceration in the NT (the highest nationally, and one of the highest internationally, with Indigenous people disproportionately represented), requiring a shift in focus.  This is due, perhaps, in part to a greater tendency to imprison Aboriginal people, a lack of available community-based sentencing options, and mandatory sentencing legislation for assaults and breaches of domestic violence orders.

Recommendations include the following:

• Finalisation of an Indigenous Justice Agreement
The Northern Territory negotiated an Agreement with ATSIC in 2002 and 2004, but the agreement was never signed. The Agreement is an ‘important first step in formally including Indigenous people in dialogue and decision making in relation to justice issues', and such Agreements in other jurisdictions have managed to reduce incarceration and improve rehabilitation.

• Legislation enshrining the principle that imprisonment is a sanction of last resort
As recommended by the RCIADIC, there ought to be legislation enshrining this principle in the Territory. The Sentencing Act must be amended to explicitly direct the court to consider community-based correctional options, and establish criteria for imposing a term of imprisonment.

• Increase community-based rehabilitation programs, and expand of the role and capacity of Community Corrections to focus on rehabilitation and reintegration
Corrections must be expanded to enable them to shift their focus.  An example of the work they have done is the Family Violence Perpetrator Program on four Indigenous communities throughout 2005.  It is noted that diversion of low risk, non-violent offenders from custody to community-based orders has been effective in other jurisdictions in reducing incarceration rates (in Victoria, Queensland and Western Australia).  This might be done by further developing programs targeting high re-offending areas such as driving related offences and assault, and an extension of the CREDIT Court (Court Referral and Evaluation for Drug Intervention and Treatment).  Further community-based post-release support is necessary.  The successful Elders Visiting Program could be extended to become a Mentoring Program post-release.

Community Court Guidelines

The purpose of the Community Court Guidelines is to establish procedures for the Magistrates Court of the Northern Territory when it sits with community members participating in Community Court.  The concept of such a court grew out of discussions between the Yilli Rreung Council In 2004, but Community Court is not restricted to Indigenous defendants.  It is noted that variations of Aboriginal Community Courts have been operational, with some success, in other jurisdictions, although the Territory did lead the way with community forums and additional court advisers (assisting the court in understanding the particular problems of indigenous communities) in the 1980s.  The Court is to operate in Darwin, but offenders from outside Darwin, or from circuit courts, may apply to be heard at the Court.  The Court aims to provide more effective, meaningful and culturally relevant sentencing options, increase community safety, decrease rates of offending, and reduce repeat offending and breaches of court orders.  From a community perspective, it aims to:

• increase community participation in the administration of the law and sentencing process
• increase community knowledge and confidence in the sentencing process
• increase the accountability of the community, families, and offenders provide support to victims and enhance the rights and place of victims
in the sentencing process
• enhance the offender's prospects of rehabilitation and reparation to the community

Whilst the Magistrate has ultimate responsibility for sentencing, community representatives will sit with the Magistrate and discuss background of the offender, how the offence has breached the community code of conduct, and aspects of the actual offence, and will also consider an appropriate sentence. All offences, other than sexual assaults, may be dealt with at the Court, and the process is open to adults and juveniles.

The Guidelines set out the relevant procedure of the Court, and possible outcomes (including new or different types of supervisory orders monitored by correctional services and/or community members or family).

Community Courts

In terms of community courts, the Nhulunbuy (North East Arnhem Land) Community Court commenced in 2003/2004, and similar courts now sit as Courts of Summary Jurisdiction in a number of locations (including Darwin).  The Courts appear to have been largely successful to date, although in the context of having dealt with only a very small percentage of criminal matters. The pilot programme of Community Courts in Darwin and the Tiwi Islands was the subject of an interim evaluation in August 2006.  This review noted that 60% of respondents felt that the Court had increased community participation in sentencing, an important achievement.  The role of Elders was also seen to provide valuable assistance within the court process; and to provide a sense of community responsibility and accountability for the joint decisions made by the Court.  The majority of matters dealt with have involved alleged offences of aggravated assault,
and referral to the Community Corrections operated Indigenous Family Violence
Program has often been utilised as part of the court process.  

In Nhulunbuy, the Community Court has incorporated a number of interesting sentencing procedures, including involving public admissions of guilt in relation to
offences of family violence before 300 people, with the victim also in attendance; or living on outstations and being counselled by senior clansmen and women.  Blokland
notes that whilst ‘many of these orders could be made without going through the Community Court process', when there is ‘family or community support for an order
of the court, there is more confidence that the orders might be complied with.' (Blokland 2007: 15).  An evaluation has been completed by the Department of Justice
in relation to Nhulunbuy Community Court (unpublished, 2007), and preliminary findings indicate that re-offending rates are better compared to those of regular courts
(40% compared to 60%).  Further, satisfaction levels were found to be high in terms of the process and outcomes of the Court., and it was seen to have led to an increased
use of outstations for probation. (1)

Indigenous Family Violence Offender Program

This project was originally introduced in 1999 (as a Partnerships Against Domestic Violence initiative) as a pilot program at Darwin Correctional Centre and Council for Aboriginal Alcohol Programs Unit (CAAPS).  The program is still being delivered at Darwin Correctional Centre, but a community-based program is now running on Indigenous communities thorough Community Corrections.  Indigenous Facilitators, selected as appropriate by their respective community members and employed by Community Corrections, deliver the program in 3 hour modules over 50 hours.  There are male and female offender programs, and male and female victim programs.  The program is an alternative sentencing option to imprisonment, and clients are generally referred through the court system (although ‘volunteer' clients from the community may also participate).  A client is assessed as suitable before referral to the program by the court, and a further assessment (upon referral) is made of both the offender and victim in terms of the circumstances of an offence of violence.  Assessment is then ongoing, to determine whether the violence has lessened or escalated as a result of participation in the program.

The program is apparently showing ‘remarkable success', with more than 40 Indigenous men attending and completing the 50-hour work program as at September 2006.  The most successful pilot, at Nguiu, is said to be working because of support from the community, police and courts; commitment of the facilitators; and the fact that the program is individualised to meet the community's needs. (2)

The program has expanded to further communities in 2008-09 when 9 IFVO programs were delivered in Wadeye, Alice Springs, Yuendemu, Hermannsburg and Tennant Creek.

Northern Territory National Emergency Response Act - Bail and Sentencing and Customary Law

Part 6 of the Northern Territory National Emergency Response Act 2007 (Cth), as well as strengthening bail provisions in the Northern Territory to ‘better secure the safety of victims and witnesses in remote communities', (3) amends Northern Territory law to prohibit the relevant authority, when exercising bail (s 90(1)(b) or sentencing (s 91) discretion in relation to Northern Territory offences, from taking into consideration any form of customary law or cultural practice as a mitigating or aggravating factor.  The Explanatory Memorandum of the Northern Territory National Emergency Response Bill 2007 states, with reference to s 90(1)(b), that a bail authority is ‘still be able to consider customary law or cultural practice in deciding whether to grant bail', but that this amendment ‘makes clear that the decision should not be based on whether the criminal behaviour would be assessed as less, or more serious, due to customary law or cultural practice. '(4)