Beyond Restorative Justice: Prioritising Deliberative Self-Determination in Indigenous Sentencing Court Systems

Abstract

Indigenous Sentencing Courts (‘ISCs’) are inadequately understood solely as restorative justice institutions. Instead, an alternative theory — ‘deliberative democracy’ — may help us analyse and understand the value of these courts. By examining a cross-section of ISC systems throughout Australian jurisdictions, I argue that the cultural and political aims associated with the introduction of ISCs calls for an alternative theory that takes greater account of the participatory role of Elders and Respected Persons and the broader social impact these courts seek to make. A broadened understanding of ISCs’ value to both state justice systems and Indigenous goals of self-determination emerges by considering the extent to which ISCs offer inclusive, authentic, and consequential deliberation to Elders and Respected Persons who assist the court in reaching a sentencing decision.