Learning to Listen to Indigenous Experience in Sentencing

Presented by ANU College of Law

Indigenous Australians are proportionally ‘the most incarcerated people on the planet’ (Uluru Statement from the Heart, 2017). On the 28th of March 2018 the Australian Law Reform Commission Report 133, Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Peoples, was tabled in the Commonwealth Parliament. We are yet to see a response. The report contains comprehensive recommendations for reform across the criminal justice system.

Recommendations 6-1 and 6-2 call for legislative reform to require sentencing courts to take the unique systemic and background factors affecting Indigenous peoples into account in sentencing Indigenous offenders, as well as the establishment of schemes for preparing and presenting ‘Indigenous Experience Reports’ to superior courts to facilitate this. These reports would connect the story of the person to the story of their people, shining a light on pathways to offending, and critically, on culturally appropriate and effective pathways to desistance.

The reform proposals echo legislative and procedural developments in Canada, which recognise that the criminal justice system has failed to listen to Indigenous experience, thereby denying equality before the law and contributing to gross disparities in incarceration rates.

The Australian Capital Territory has committed itself to a trial of Indigenous Experience Reports in sentencing, to be called Ngattai Reports (which means ‘listen’ in Ngunnawal). In this presentation, Dr Anthony Hopkins will review developments that have led us to the point of this trial. Drawing upon his research in Australia and Canada, he will consider the potential for these reports to enable sentencing courts to listen to and engage with the lived experience of Indigenous offenders.