Aboriginal Imprisonment in WA and Australia

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Restorative Justice for Aboriginal Community

Restorative Justice for Aboriginal Community

Aboriginal community makes up about 3 per cent of the total Australian community. They are the most disadvantaged community in the country in terms of education, healthcare provision, living standard as well and family violence (Blagg, 2008). This problem is so great such that their life expectancy is 10 years less compared to non-aboriginal counterparts. High criminal rates have been reported among the indigenous Australian for a very long time. Indigenous people in West Australia and Australia at large commit crimes and thereby are prisoned at a very high rate. According to research study in Australia, there is gross overrepresentation of indigenous criminals at all level of the illegitimate justice system (Blagg, 2008). According to Australian Bureau of statistics, the indigenous people account for approximately 25 per cent of the prison population. As a result of this, the government and indigenous representatives have come up with measures to reduce criminal activities among the indigenous community. The large number of aboriginal imprisonment is a shocking fact. This large number may suggest two things (Hall and Patrinos, 2012). First, this community commit a disparate number of crimes or second, they fall as sufferers of prejudiced justice system.

The main sources of aboriginal unlawful behaviour may be deep embedded in the history of discrimination as well as social inequality (Blagg, 2008). In addition, in Australia, it is reported that a system that strive to offer justice for all in Australia is incapable of assisting the aboriginal and ends up discriminating against them as they have cultural values that are different from those of the non-indigenous community (Blagg, 2008). Over-representation of the indigenous community in the justice system may be brought about by actors such as cultural oppression, systemic discrimination and social inequality among others. As a result of the incapability of the traditional criminal justice system to solve aboriginal challenges, new form of justice practice is required (Marchetti and Daly, 2007). This paper will discuss the restorative justice practices for aboriginal community and how it contributed in reducing aboriginal imprisonment.

In Western Australia more than 25per cent of the prison population are aboriginal people. Incarceration of this community is higher compared to non-aboriginal people (Australian Bureau of Statistics, 2008). The over-representation of Aboriginal community as mentioned earlier occurs at all levels of the judicial process, from their charging to sentencing. The Aboriginal imprisonment rate is reported to have increased from 2,040.3 to about 2,174.5 prisoners per 100,000 aboriginal populations in June 2013 (Australian Bureau of Statistics, 2008). The figure suggests that this is the largest increase rate since 2004. The indigenous imprisonment rate has increased in all states in Australia from 2013 with exception of few states. The imprisonment of aboriginal population in the same year was highest in West Australia (Australian Bureau of Statistics, 2008).

Aboriginal Imprisonment in WA and Australia

In addition, the age standardized imprisonment rate for indigenous population in 2013 was 13 times greater compared to that of non-indigenous population as seen in the graphs below.

Aboriginal Imprisonment in WA and Australia 1

Aboriginal Imprisonment in WA and Australia 2

Unless changes take place in the relationship between indigenous people and the criminal justice practices, similar challenges of aboriginal community can be expected (Fredland, 2009). For instance, indigenous overrepresentation in the justice system is marked as a crisis in Australian justice system. Although the recent amendments have led to the decrease in the population of people in prison, the drop in the number of indigenous admission is much lower compared to that of non-indigenous people (CIRCA, 2008). This is seen in both the adults and young people justice sphere. This therefore means that high number of aboriginal prisoners will continue to be a problem to the later years (Daicoff, 2006).

As mentioned earlier, a larger number of aboriginal communities are involved in criminal activities as a result of the discrimination by the justice system and partly by the criminal behaviours they portray (Wallis, 2009). The growing number of aboriginal people in prison can be attributed to the difficulty in understanding the meaning of crime. Different communities in Australia have a different concept of the word “crime”. For instance, a large number of aboriginals are exercising hunting and fishing though they are at risk of being prosecuted by the federal laws for exercising in such activities (Marchetti and Daly, 2007). Moreover, criminals are considered part of a larger community; some may have the privilege of escaping detection or conviction. A larger group that is caught and convicted is the aboriginal community (Environics Institute, 2010).

There are four discovered factors that need to be taken into consideration when solving aboriginal incarnation in West Australia. First, aboriginal people are over-represented most significantly in territorial federal penitentiaries (Snowball and Weatherburn, 2007). Second, the over-representation of the aboriginal community originates from high levels of crimes among the community as well as discrimination of the justice system. Third, the increasing levels of aboriginal crimes are connected to the historical experience of expansionism that has challenged the social, judicial and cultural foundation of the aboriginal community (Snowball and Weatherburn, 2007). Fourth, addressing the historical roots of the indigenous crimes require a healing of relationships. While there is unanimity concerning the challenges facing indigenous community in the criminal justice system, reactions are all over. The traditional criminal justice system is considered not enough in solving these challenges (NSW Government, 2006). An effective response to these issues should focus at addressing the deep-rooted sources of these problems that result to high rate of aboriginal imprisonment (Eades, 2008).

Over the years, although the number of imprisonment in Australia has decreased dramatically, the number of indigenous people imprisoned is still alarming (Cunliffe and Shepherd, 2007). In the last decade, a revolution has occurred in Australia in ways the justice system retort to crime. Given what is known about the aboriginal people and the way they engage with one another and the community, it is important to diverse a number of justice processes in the justice system which is able to address the indigenous offending (Hua and Fitgerald, 2006). In West Australia, restorative justice practices are being seen in the sentences given to criminal offenders. However, the shift to restorative justice practices has been slow and tentative. The change to restorative justice practices is considered an important change specifically to the indigenous offenders whose number has remained high in the prisons. Restorative justice can be considered as a new process and result of responding to crimes (Parker and Pathe, 2006). Restorative justice entails discussions and consultation within a given community. The process is aimed at devising appropriate response to crime committed by an individual from a selected community. Overall, according to Australian Supreme Court, restorative justice practice is the approach taken to remedy crime as it understands the interrelation between things and that crime may potentially dispute the harmony of a community (Mirsky, 2011).

The appropriateness of the restorative justice put into consideration the needs of the offender, victims and the community at large (Wallace, 2008). This practice is aimed at focussing attention on the people affected by the crime. In contrast to restorative justice practices, the old approach to criminal justice that has been in use for many years is well-known and deeply deep-rooted (Goldstein, 2006). This traditional justice practices view crime as an offense against a given state. It sees punishment as an unavoidable part of the larger society among offenders. In addition, the traditional model of criminal justice view victim’s role as secondary. The state perceives crime as harm against the state (Freiberg, 2007). The restorative justice model on the other hand perceives crime as harm towards the society which require repair. In this model, the victim plays a major role in identifying the harm a crime has on the victim and the community (Daly, Hayas and Marchetti, 2006). The victim takes part in deciding the outcome that will restore balance in the community.

The restorative justice practice also offers a chance for healing of the criminals which reduces recidivism (Wachtel, 2011). The criminal justice system over the years is said to have failed the aboriginal community in West Australia. The development of restorative justice practices is portrayed as a moment of calm in an event faced with storm of ways to solve the challenges of over-representation of the indigenous people in the criminal justice system (Menkel-Meadow, 2007). The government as well as the advocates of the indigenous community have supported the emergence and implementation of restorative justice model as means of solving over-representation of indigenous criminals. Over-representation of the indigenous people may be solves using methods that incorporate restorative justice model as a remedial strategy (Grant, 2009).

Many less fortunate people in Australia especially those who get themselves caught up the justice system are considered victims of crimes and abuses (Madden, 2007). Their needs may cloud their discernment of how their actions have affected others. Many indigenous Australians have experienced discrimination, abuse, and lose of culture. A healing process tends to address the needs that result from historical abuse (Madden, 2007). In contrast, the traditional criminal justice is more focussed on the state and does not deal with offenders who may be victimize (Hennessy, 2006). Since of the objectives of restorative justice model are very different from those instituted in the traditional criminal justice, the outcomes of sentencing process is quite different. Restorative justice practices involved community members that tend to increase the quality of information required during sentencing process and create effective options for charging and sentencing offenders. In addition, restorative justice practices offer greater knowledge of community resources necessary during the healing plan (Freiberg, 2007).

Another benefit portrayed by the restorative justice practices is the greater ownership of the justice system. In West Australia, there is a movement towards enhanced community engagement in policing as well as other justice systems. This is aimed at reducing the number of aboriginal imprisonment and over-representation (Snowball and Weatherburn, 2006). This movement concurs with the need to move conflict from the courts to the community as alternative resolution mechanisms. Restorative justice model is greater in aboriginal communities that have been disenfranchised and are in need of self-governance (Wachtel and Wachtel, 2012). Restorative justice practices are considered important in the sentencing process involving the aboriginal communities.

The establishment of the community-based justice system among the indigenous people tells a different story of the restorative justice and its task in solving problem affecting the relationship between the criminal justice system and the indigenous community (Grant, 2009). Even before reformers and lawmakers focussed their attention to this problem, aboriginal Australians were already developing innovative and community-based justice practices that would deal with the overwhelming social and justice problems affecting their community (Daly, 2009). One of the successful indigenous programs was conferences involving the indigenous people. The main aim of conferences was to dissuade criminal offenders from the criminal justice system through proving an opportunity for them to be present at a conference in order to discuss and resolve the crime committed instead of undergoing charging and sentencing. This program only applies to criminal offenders who admit to being guilty (Freiberg, 2007). The conferences are often attended by these offenders, victims, their supporters and the members of the community.

The process throughout the conference condemns the actor and offenders are asked to explain the happenings, their feelings about the crime and what they think should be done to them (Marchetti and Daly,2007). After the offender has undergone interrogation, a plan of action is designed which is agreed upon by all parties involved in the crime. All the participants of the conferences are the ones who determine the outcome of the crime committed (Freiberg, 2007). The conference program is used among the indigenous community in countries like Australia, Europe, North America and New Zealand. The conference program includes circle sentencing as well as victim offender mediation schemes. These programs are used as a pre-sentence option and as a handling tool of family warfare and in workplace disputes (Daly and Proietti-Scifoni, 2009).

In Australia, about eight states have implemented conference model in reducing indigenous imprisonment. Conferencing model is active in any five states and four of these have endorsed supporting legislation e.g. in South Australia, West Australia, and New South Wales (Freiberg, 2007). In West Australia, the conference model applies for juveniles and adults. In the country, the pilot conference scheme started in 1993 in Perth. It involves the coordinator, individual from DCS where the offender stays, a nominated group of people and whoever the coordinator wants to invite. There is often an Aboriginal Coordinator for each conference program and teams are assisted by Aboriginal worker (Menkel-Meadow, 2007). One form of restorative justice practice that is widely used in West Australia is the circle sentencing. Circle sentencing is considered an alternative imprisonment process for aboriginal offenders in Australia (Wallace, 2008).

The circle sentencing takes a crime case outside the court system into the community setting (Marchetti and Daly, 2008). In this practice, the offender, magistrate, victim and the community elders sit in circle in order to discuss the occurrence of a crime and come up with a sentence tailored to the criminal offender (Dick and Wallace, 2007). This circle sentencing is founded upon the restorative model of justice which involves the community in sentencing process (Harris, 2006). All Australian Jurisdiction currently operate aboriginal sentencing courts that follow the procedures of restorative justice. Furthermore, the Australian sentencing courts strive to put into consideration the culture of the community and include the aboriginal society and the offender (Harris, 2006). The objective of the circle sentencing is aimed at including the indigenous people in the sentencing process, increasing the confidence of this community in justice system, reducing barriers between aboriginals and the justice system, offering alternative sentencing option and reducing imprisonment and recidivism in indigenous community (Crime Prevention Division, 2007).

Another program based on the restorative justice model is the victim-offender mediation. This program is meant to give a chance to the victims to meet with the offender in a structured environment where they can engage in a mediated discussion in the present of a mediator about a crime committed (Richard, 2010). A well-trained mediator has an opportunity to the victim to explain the physical, emotional and financial impact of the criminal activity. The offender and the victim have chance to ask questions regarding the crime in question and the victim take part in developing a restitution plan (Madden, 2007). In addition, the offenders explain their criminal activities and are advised to take responsible of their actions. The goal of the victim-offender mediation is to support the victim’s healing process and allow the offender to take responsible of his actions. It also allows the victim and the offender to come up with a mutually accepted plan to solve the harm of the crime (Madden, 2007).

The problem with the growing number of aboriginal population in prison has steered some worry in Australia which led to the manifestations through restorative justice model. The over-representation of the aboriginal in West Australia suggests that sentencing reforms are not helping a lot in solving aboriginal imprisonment issue (Snowball and Weatherburn, 2006). Research study conducted regarding young offenders showed that the sentencing reforms are only serving as breaks on reliance on imprisonment as a way of solving youthful criminal behaviour and but is not making any notable impact on aboriginal people (Canneen, 2006). The persistence of overrepresentation coupled with the overgrowing number of the aboriginal people suggests that the prison population of the aboriginal people will continue increasing. The restorative model of justice according to some scholars appear to having little impact since over-representation and imprisonment of aboriginal people is considered a fact of life and some aspects of these issues are deeply entrenched in the criminal justice system (Bryant, 2008).

Nevertheless, as evidence in West Australia, sentencing reforms based on the restorative model of justice has made a remarkable impact on incarceration rates (Daly, 2009). For instance fewer aboriginal people are imprisoned than before and the community is more involved in the sentencing process. It is wrong to conclude that restorative models such as circle sentencing do not have sufficient impact on solving incarceration problem simply because it does not have short-term impact (Daly, 2008). Restorative model of justice strengths the social control of the aboriginal community which in the long run reduced crimes committed among the indigenous people in the long-run, the number of aboriginal imprisonment deceases (Wachtel, 2012).

Nevertheless, given the priority of the Australian government to reduce aboriginal imprisonment, it would be important to start considering methods of improving the effectiveness of the restorative justice model such as circle sentencing (Wachtel, 2011). To start with, in order for rehabilitation programs involving the aboriginal people to be effective and successful, they must change the features of offenders that are linked to their criminal activities, for instance unemployment, relationships with criminal peers and drug abuse. Restorative justice practices are not meant to do this (Wachtel, 2011). What restorative justice practices do is to strive to reduce reoffending by offering indigenous people an opportunity to be involve in the sentencing process. This direct involvement is considered insufficient in reducing reoffending and aboriginal imprisonment (Davey, 2007). For instance, the government and the justice system should put into consideration the likelihood of combining restorative model such as circle sentencing with other programs such as remedial education and cognitive behavioural therapy that have the ability to alter the risk factors that encourage further reoffending (Wachtel and Wachtel, 2012).

In conclusion, over the years, the number of aboriginal people in prison has increased considerably. This is attributed to the probability of the aboriginal people to commit crime compared to non-aboriginal people. In addition, the criminal justice system is accused of discriminating against aboriginal people. This has increased their over-representation in the justice system. The high number of aboriginal people in the prisons may be attributed to historical social and cultural oppressions that they underwent as well as criminal justice system applying laws which affect these people. The traditional criminal justice system is considered incapable of dealing with the underlying challenges facing the aboriginal community and a new system is required in order to reduce over-representation and aboriginal imprisonment. Restorative justice practices are considered important in solving the challenges facing indigenous community. These practices involve the community in the sentencing process and offer healing chance for the victim. Many benefits have been linked to these practices and have shown to be operational in reducing aboriginal imprisonment. Restorative justice practices practiced in West Australia include circle sentencing and victim-offender mediation among others. These practices have shown to be effective in the long-run.


Australian Bureau of Statistics. (2008). 2006 Population Characteristics, Aboriginal and Torres Strait Islander Australians, 4713.0.

Blagg, H. (2008). Crime, aboriginality and the decolonisation of justice. Annandale, N.S.W: Hawkins Press.

Bryant, G. (2008). “Special solutions to special needs in Indigenous communities.” Paper presented to Association of Australian Magistrates Conference, June, Sydney. (Shepparton Koori Court magistrate)

Cunneen C. (2006). Racism, discrimination and the over-representation of Indigenous people in the criminal justice system: some conceptual and explanatory issues. Current Issues in Criminal Justice, 17(3): 329–46.

CIRCA (Cultural & Indigenous Research Centre Australia) (2008). Evaluation of Circle Sentencing Program report. Sydney: Attorney General’s Department of New South Wales.

Crime Prevention Division. (2007). Circle sentencing factsheet, NSW Attorney General’s Department, Sydney. viewed 6 February 2008, <http://infolink/lawlink/cpd/ ll_cpd.nsf/vwFiles/Circle%20Sentencing_feb07.pdf/$file/Circle%20Sentencing_ feb07.pdf>

Cunliffe, J. & Shepherd, A. (2007). Re-offending of adults: results from the 2004 cohort, Home Office Statistical Bulletin no. 06/07. Home Office: London.

Daicoff, S. (2006). “Law as a healing profession: the ‘comprehensive law movement’.” Pepperdine Dispute Resolution Law Journal. 6(1): 1-61.

Daly, K. (2008). Interviews with Nowra Circle Court defendants, with assistance from Uncle Lou Davis, Nowra, April.

Daly, K. (2009). Analysis of Australian Indigenous imprisonment and demographic information. Brisbane: School of Criminology and Criminal Justice, Griffith University.

Daly, K. and G. Proietti-Scifoni, with assistance of N. Fisher (2009). Defendants in the Circle: An Analysis of the Nowra Circle Court and Re-Offending. Brisbane: School of Criminology and Criminal Justice, Griffith University.

Daly, K., H. Hayes, and E. Marchetti (2006). “New visions of justice.” Pp. 439-464 in A. Goldsmith, M. Israel, and K. Daly (eds.) Crime and Justice: A Guide to Criminology. Sydney: Lawbook Company.

Davey, L. (2007, November). Restorative practices: A vision of hope. Paper presented at “Improving Citizenship & Restoring Community,” the 10th International Institute for Restorative Practices World Conference, Budapest, Hungary.

Dick, D. and G. Wallace (2007). “Circle sentencing in New South Wales: sentencing of Aboriginal offenders.” Paper presented to Australasian Indigenous Courts Conference, Mildura, September.

Eades, D. (2008). Courtroom talk and neocolonial control. Berlin New York: Mouton de Gruyter.

Environics Institute. (2010). “Urban Aboriginal Peoples Study: Main Report.” http://www.cbc.ca/news/pdf/uaps-­‐report-­‐april5.pdf (accessed April 6, 2010).

Fitzgerald, J. (2008). “Does circle sentencing reduce Aboriginal offending?” Crime and Justice Bulletin. Number 115, May.

Freiberg, A. (2007). “Non-adversarial approaches to criminal justice.” Journal of Judicial Administration, 16: 205-222.

Friedland, H. (2009). “Different Stories: Aboriginal People, Order, and the Failure of the Criminal Justice System.” Saskatchewan Law Review, 72, 105‐42.

Goldstein, A. (2006, October). Restorative practices in Israel: The state of the field. Paper presented at the Eighth International Conference on Conferencing, Circles and other Restorative Practices, Bethlehem, PA, USA.

Grant, P. (2009). “Koori courts in the State of Victoria.” Paper presented to District Court of New Zealand Judges’ Triennial Conference, Rotorua, March. (County Court Koori Judge) 23

Hall, G. & Patrinos, H. (2012). Indigenous peoples, poverty, and development. New York: Cambridge University Press.

Harris, M. (2006). “A Sentencing Conversation:” Evaluation of the Koori Courts Pilot Program, October 2002-October 2004. Bundoora and Melbourne: LaTrobe University Law School and Victorian Department of Justice.

Hennessy, A. (2006). “Indigenous sentencing practices in Australia.” Paper presented to International Society for Reform of the Criminal Law Conference, Brisbane, July.

Hua, J. & Fitzgerald, J. (2006). ‘Matching court records to measure re-offending’, Crime and Justice Bulletin, no. 95 , NSW Bureau of Crime Statistics and Research, Sydney.

Madden, S. (2007). “The Circle Court in the ACT: an overview and its future.” Paper presented to the Australasian Institute of Judicial Administration Indigenous Courts Conference, Mildura, September. (ACT Ngambra Court magistrate).

Marchetti, E, and K. Daly (2008). Strengthening the Ngambra Circle Sentencing Court: Final Reports 1-4. Brisbane: Griffith University School of Law and School of Criminology and Criminal Justice. (on file with the author; awaiting public release).

Marchetti, E. and K. Daly (2007). “Indigenous sentencing courts: towards a theoretical and jurisprudential model.” Sydney Law Review, 29(3): 415-443.

Menkel-Meadow, C. (2007), “Restorative justice: what is it and does it work?” Annual Review of Law and Social Sciences, 3: 161-187

Mirsky, L. (2011). Restorative practices: Whole-school change to build safer, saner school communities. Restorative Practices eForum. Retrieved from http://www.iirp.edu/article_detail.php?article_id=Njkx

NSW Government. (2006). State plan: a new direction for NSW. Premier’s Department: Sydney.

Parker, N. & Pathe, M. (2006). Report on the review of the Murri Court. Qld Department of Justice and Attorney General, Brisbane, viewed 6 February 2008, <http://www.justice.qld.gov.au/files/ Services/MurriCourtReport.pdf>

Richards, K. (2010). Police-referred restorative justice for juveniles in Australia. Trends & issues in crime and criminal justice series no. 398. Canberra: Australian Institute of Criminology. Viewed 12 June 2013, http://www.aic.gov.au/publications/current%20series/tandi/381400/tandi398.htm

Snowball, L. & Weatherburn, D. (2006). ‘Indigenous over-representation in prison: the role of offender characteristics’, Crime and Justice Bulletin, no. 99, NSW Bureau of Crime Statistics and Research, Sydney.

Snowball, L and Weatherburn, D (2007). ‘ Does racial bias in sentencing contribute to Indigenous Over-representation in Prison?’, ANZ Journal of Criminology, 40(3), 272-290

Wachtel, T. (2012). «Defining Restorative«. International Institute for Restorative Practices. Retrieved 11 July 2012.

Wachtel, J. (2011).»Restorative Justice: The Evidence». International Institute for Restorative Practices. Retrieved 11 July 2012.

Wachtel, J., & Wachtel, T. (2012). Building Campus Community: Restorative Practices in Residential Life. Bethlehem, PA: International Institute for Restorative Practices.

Wallace, G. (2008). “Speech unveiling the Circle Sentencing Plaque.” Nowra Local Court, 16 December, 2 pm

Wallis, R. (2009). “The Northern Territory Emergency Response Legislation: An Instrument of Government.” MA (Hons) Thesis. Brisbane: School of Criminology and Criminal Justice, Griffith University.