The Limits of Reconciliation in Criminal Sentencing

Anthony, T

The Limits of Reconciliation in Criminal Sentencing

Anthony, T

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Publisher:: Springer
Publication Type:: Chapter
Citation:: The Limits of Settler Colonial Reconciliation, 2016, pp. 249 - 269
Issue Date:: 2016

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Field	Value	Language
dc.contributor.author	Anthony, T https://orcid.org/0000-0002-0652-0731	en_US
dc.contributor.editor	Maddison, S	en_US
dc.contributor.editor	Clark, T	en_US
dc.contributor.editor	Costa, RD	en_US
dc.date.issued	2016	en_US
dc.identifier.citation	The Limits of Settler Colonial Reconciliation, 2016, pp. 249 - 269	en_US
dc.identifier.isbn	9789811026546	en_US
dc.identifier.uri	http://hdl.handle.net/10453/122904
dc.description.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: 179–187, 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.	en_US
dc.publisher	Springer	en_US
dc.relation.ispartof	The Limits of Settler Colonial Reconciliation	en_US
dc.relation.isbasedon	10.1007/978-***********-6_15	en_US
dc.title	The Limits of Reconciliation in Criminal Sentencing	en_US
dc.type	Chapter
utslib.location	Singapore	en_US
utslib.for	1801 Law	en_US
pubs.embargo.period	Not known	en_US
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
pubs.organisational-group	/University of Technology Sydney/Strength - SIC - Strengthening Indigenous Communities
utslib.copyright.status	closed_access
pubs.consider-herdc	true	en_US
pubs.place-of-publication	Singapore	en_US
pubs.publication-status	Published	en_US

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: 179–187, 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.

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http://hdl.handle.net/10453/122904