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Sandra

Sandra Wendlandt

Year of Award: 2014 Award State: Northern Territory Legal > Penal And Parole
The Justice James Muirhead Churchill Fellowship to explore alternative and culturally specific programs which aim to divert Indigenous first time offenders from the criminal justice system - New Zealand, Canada, UK, Belgium, Germany, South Africa
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If you said to me that a large looming someone stole your bag and that it made you anxious to encounter other large looming people, I would sympathise. If you told me someone with a knife played near your children at the park and you were reluctant to let them go again alone, I might agree. If someone urinated in the stairwell of your office building or broke a window, I would expect it reasonable that this someone at least clean their mess and repair their damage.

If I told you the large someone was a young homeless man who used your money to buy food, you might see his desperation. If you knew the knife was in fact a pocketknife and in a pocket, you might exhale a sigh of relief and wonder what the fuss was all about. And once the broken window was repaired and the floor cleaned you might wonder whether it is in fact necessary for that person to end up in court. What if these three people were in trouble with the law for the very first time: the effect of a criminal history potentially changing the course of their lives forever. The question that follows then is are these stories, now in placed context, good reason enough to enter the criminal justice system.

In the Northern Territory there is a considerable chance that people charged by police will be indigenous. Indigenous people are over-represented in the justice system in Australia, particularly in the Northern Territory. They are also overrepresented in New Zealand and Canada, and in South Africa the justice system struggles with the legacy of apartheid where certain cultural groups are also overrepresented. What these countries share with Australia is a profound and complex (post)colonial history of indigenous oppression and dispossession which cannot be wrested from the manner in which the justice system operates. What they share with the Northern Territory in particular, distinct from large parts of Australia, are the challenges of remote and sparsely populated communities, many of whom are indigenous; low rates of employment in these areas; lack of access to services; the alienating effect of mobile courts; and limited resources for justice programming. However, these countries have developed different ways of incorporating indigenous, culturally diverse approaches into the justice system in an effort to reduce the contact that indigenous people have with the justice system. These involve diversion and diversionary practice,

It is in this spirit that my Fellowship project was born: to examine creative ways that first time offenders can be dealt with in the Northern Territory given the absence of diversion and diversionary approaches and to identify what criminal defence lawyers who work in aboriginal aid, prosecutors, court services, as well as community groups can do to fill this gap and to reduce the contact indigenous people have with the justice system. As part of my Fellowship I visited parts of New Zealand, Canada and South Africa. While diversion approaches in New Zealand, Canada and South Africa have been longstanding,

I discovered that many justice systems were going far beyond diversion to engage restorative justice  practices  for all  manner  of  offences.  In  a  sense,  these  alternative  approaches challenged ideas of what it means to live in a politically and socially active community. The theoretical underpinning of restorative-reinvesting-therapeutic justice was also important to consider, and in this light I also found it prudent to visit northern Germany, Belgium, the Netherlands and had a brief encounter with the United Kingdom where considerable research (and practice) is underway in the field of restorative justice.

Discovering the global reach of these approaches to diversion and restorative justice has elucidated tools that actors in the justice system, such as myself - a criminal defence lawyer working in aboriginal legal aid - might draw on and apply in the Northern Territory. The same applies for the prosecution, indigenous community groups, and other court services. Crucially, and critically, my non-indigenous self grappled with producing recommendations. An answer to the precise manner in which diversion and diversionary approaches should be developed must emerge from the community, and in this case it must lie in an indigenous voice, meant in the plural sense.

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