The Limits of Reconciliation in Criminal Sentencing

Abstract

Indigenous people in Australia are vastly over-represented in police custody and prisons. This paper argues that there is a judicial responsibility to take notice of systemic and prejudicial post-colonial circumstances affecting Indigenous people to reduce imprisonment. This may represent a step on the path to reconciliation in the legal system. By eschewing this reconciliatory gesture, Australian courts are complicit in the over-representation of Indigenous people in prisons. By contrast, Canadian judiciaries and legislatures have taken notice of the systemic disadvantage imposed by the legal system and broader colonial society on First Nations people and have sought to promote non-prison sentences for Aboriginal people. But is it enough for Australian courts to adopt the Canadian approach? This chapter draws on the ideas of Alfred (Response, responsibility and renewal: Canada’s truth and reconciliation journey. Aboriginal Healing Foundation, Ottawa: 179187, 2009) that reconciliation absolves and entrenches colonial injustice by maintaining the dominance of postcolonial jurisdictions, processes and criminogenic assumptions. Resurgence, restitution and regeneration concepts that Alfred introduces as counterpoints to reconciliation, are essential for breaking down the postcolonial structures that subordinate Indigenous people. In the legal system, measures to privilege Indigenous perspectives and knowledges through Indigenous sentencing courts and Indigenous community pre-sentence reports challenge the whiteness of legal discourse and process. However, they are not a substitute for the resurgence of Indigenous governance and ongoing jurisdictional claims that push the limits of reconciliatory gestures in criminal sentencing.