“The case has prompted a bout of national introspection after it has emerged that the court’s leniency was only one of many institutional failures toward the victim,” writes Tim Johnston for The New York Times. “[It] was greeted with outrage and disbelief across Australia, which has been wrestling with the problem of child s-x abuse in indigenous communities,” notes Barbara McMahon in The Guardian.
Justice Bradley, a District Court Judge in the Cairns region, would know much of that problem. In February 2006, she presented a considered paper, “Applying restorative justice principles in the sentencing of indigenous offenders and children” at the Sentencing Principles, Perspectives and Possibilities Conference in Canberra.
Restorative Justice, she said, “involves an emphasis on reparation, rehabilitation and reconciliation rather than punishment, condemnation and retribution. It is about healing rather than hurting and usually involves some sort of community participation and involvement.” In the speech, she talked of the need for judges to consult with Indigenous community representatives, noted that it was desirous for judges to get to know the community they were dealing with and underlined the problems of an underfunded justice system.
In a particularly prescient paragraph, though she could not have anticipated the level of the recent controversy, she noted:
For those of us who are convinced of the benefits of applying Restorative Justice principles when sentencing, the current political and community climate presents challenges. There is an obvious tension between an instinctive attraction towards the application of Restorative Justice principles and the pressure through the media of political and community perceptions that the system is “soft” on criminals and sentences too light.
The reality is that, certainly in Queensland, the judiciary has in recent years been taking a tougher approach and custodial penalties are increasing in quantity and in length.
On the one hand governments speak, for example, of abolishing remissions and parole and on the other they are prepared to support some Restorative Justice Initiatives (not necessarily wholeheartedly)…
It does seem that in practice the most successful Indigenous Justice initiatives are those created by communities themselves with the co-operation of sympathetic judicial officers. The message then to judicial officers is to take the time to engage with and listen to the communities you serve and give yourself the freedom to do things differently. To advocates for offenders, consider if your client would benefit from elements of Restorative Justice and don’t be afraid to argue for the inclusion of such elements in the process your client faces.
In January this year, Justice Bradley further examined the competing policy issues at play in sentencing Indigenous offenders.
Do initiatives to treat Indigenous offenders differently “simply feed a perception that there is ‘one law for whites and another for blacks’, or are they constructive acknowledgements of the statement ‘there is no greater inequality than the equal treatment of unequals’?” she pondered in a paper titled “Using Indigenous justice initiatives in sentencing” given to the Judges Conference in Perth.
Sentencing Indigenous offenders is never easy. There are times when the offending behaviour clearly warrants the imposition of severe and significant penalties. There are also times when a judge who has knowledge of a community, has information about the community view of the offending, the background to it and the full particulars of those involved may decide that an alternative penalty is appropriate. Determining which category of case is before you can be problematic and can often only be done with input from the Indigenous community itself.
As Noel Pearson says, the shameful number of Indigenous people appearing in our courts and doing time in our prisons is a product not of the criminal justice system itself but of the gross dysfunction of most Indigenous communities and the breakdown of social norms and constraints. Pearson urges that Indigenous people themselves take responsibility for, and take the action necessary to address, these issues. No sentencing judge has the solution to this social crisis. But on an individual level judges can at least show that they are attempting to understand and do justice.
It does seem that in practice the most successful Indigenous Justice Initiatives are those created by communities themselves with the co-operation of sympathetic judicial officers. Judges can only take the time to engage with, and listen to, the communities we serve and attempt to apply what we learn in order to do justice according to law.