We have much to learn from the Indigenous approach to law and order, writes Vanessa Murray

Indigenous people comprise two per cent of the total Australian population. But in 2006 they made up 24 per cent of the prison population, and are, on average, 12 times more likely to be imprisoned than their non-Indigenous counterparts. In some states, such as South and Western Australia, the figures are far higher. Most serve sentences of five years or fewer, and more than three quarters - well above the national average of 58 per cent - can be expected to re-offend. Such gross over-representation of Indigenous people in prisons is not unique to Australia. In New Zealand, Maori make up 15 per cent of the populace and 50 per cent of the prison population, while in Canada, 3.3 per cent identify as Indian, Inuit or MŽtis, yet comprise 22 per cent of people behind bars.

Clearly, new approaches are needed across the spectrum to enable Indigenous people to exist in the present and future in self-determining and positive ways. And, slowly but surely, Australia's justice system is being reformed. Over the past 20 years, Indigenous rights advocates, policy makers and lawmakers alike have worked together to make justice more accessible, more meaningful, and more effective for Indigenous people. The introduction of Indigenous justice practices, both in Australia and overseas, is effectively contributing to a more approachable, less intimidating, experience of "white man's justice".

Indigenous paradigms of justice share a holistic philosophical foundation treating justice as a circular concept connecting everyone involved on a continuum. Imagined visually, the continuum represents the entire process, from disclosure of problems, to discussion and resolution, to making amends and restoring relationships. The people - perpetrators, victims, families, elders - form the circle. At the centre of the circle are the crime, the underlying causative issues, and the end goal of harmonious resolution for all involved, and the community as a whole.

In practice, Indigenous justice draws upon principles of restoration and reparation. The former restores harmony by mending damaged personal and communal relationships, and the latter are the actions and processes by which an offender makes things right - both for him/her self and those affected by the offence. The victim is the focal point, and the goal is for the offender to make sincere amends through deliberate acts of apology, asking forgiveness, and making restitution. Regaining dignity and trust is an important aspect of returning the victim, the offender and the community to a healthy physical, emotional, mental, and spiritual state.

This is quite a departure from the Western parable of justice, which is adversarial, hierarchical, retributive and punitive - in both theory and practice: adversarial in its placement of two opposing parties in a courtroom in order to determine guilt or innocence, or declare a winner and loser; and hierarchical in that the vertical power structure is a top-down system, with decision making limited to a privileged, powerful few. It seeks retribution in maintaining that because the victim has suffered, the criminal should suffer, too. It also punishes in its categorisation of criminals as wicked people who are responsible for their actions and deserve to be punished in order to appease the victim, satisfy society's desire for revenge, and reconcile the offender to the wider community by paying a debt to society. Right and wrong, good and bad, black and white.

Brett Ahmat, former Executive Officer of the Melbourne Metropolitan Regional Aboriginal Justice Advisory Committee pointed out that Indigenous justice in Australia is not about incorporating traditional law, but about applying mainstream law in a more appropriate way. Indeed, the operation and success of Indigenous justice is grounded in its recognition, acceptance and formalisation by the Western system. Like many of the people it targets, Indigenous justice is at once embedded within, and outside of, the mainstream system.

Magistrate Chris Vass was a key figure in the establishment of systems of Indigenous justice in Australia. Vass travelled on circuit to South Australia's Pitjantjatjara Lands for 17 years. This, combined with 15 years' experience in Papua New Guinea, motivated him to consult with local Indigenous groups, the Aboriginal Legal Rights Movement and the Department of Aboriginal Affairs, to redress Indigenous people's deep distrust of the criminal justice system. In June 1999, the first Aboriginal Court Day was convened in South Australia, and not long after, it was renamed the Nunga Court. In 2002, Indigenous courts based on the South Australian model were established in Victoria (the Koori Court) and Queensland. Speaking on air in 2000, Vass explained how they work: "I don't sit on the bench. I come down and sit at the other side of the bar table. Defendants sit at that table instead of sitting in a dock; they sit right in front of me, next to their lawyer, and family members are able to sit with them. And everybody gets to say something. So that makes it a lot more intense and a lot more personal, but in the end there's still got to be a sentence. The sentence is a lot more personal for the people sitting in the court room."

The degree of informality adopted by an Indigenous court varies by jurisdiction and magistrate, but, in general, considerably more time is taken for each matter than would be the case in a regular court. Everybody speaks plain English, and Indigenous elders play a key role in advising the magistrate on an appropriate sentence, which is sometimes a community based sentence.

New South Wales and the ACT have taken things a step further and adopted the Canadian Circle Sentencing model. Circle sentencing represents a significant paradigm shift towards the notion of law as a way of life - a living concept that is known and understood through experience. In Canada, the structure of relationships in many tribal communities is recognised as being paramount to a legal system, where tribal law regulates the behaviour of its members and determines the flow of how problems are handled. Offenders are forced to be accountable for their behaviour, to face the people whom they have hurt, explain themselves, ask forgiveness, and take full responsibility for making amends. Ritual, such as ceremonial sweats, fasting, and purifications, is often used to cleanse the spirit and soul of bad forces that caused the offender to begin the healing and cleansing process necessary for the victim, the offender, and their families.

Established in 2002 and 2004 respectively, the NSW and ACT Circle Sentencing Courts differ from the Nunga Court model in operating less like an Indigenous court day in a regular courthouse, and more like a community forum. Held in culturally appropriate locations, such as a community centre or traditional place, participants sit in a circle that is closed to observers, and documentation describing the offence and the offender is commented on by all participants - the victim (if they want to participate) the offender, their kin and support people, an Aboriginal Project Officer, the defence counsel and the police prosecutor. The Circle discusses an appropriate sentence plan for the offender, and reconvenes after a few months to assess the offender's progress. Its focus is primarily repeat offenders who are likely to receive a custodial sentence, but not all cases can be heard in the Circle Sentencing Court - sex offences and strictly indictable offences are ineligible - and jail remains a sentencing option for the group.

A 2003 report by the NSW Judicial Commission and Aboriginal Justice Advisory Council surveyed Circle Court participants, who gave positive feedback. All except one of eight victims surveyed said they were satisfied with the final outcome, with one commenting that, "the offender has become a better person with knowledge that he lacked before." Offenders also responded positively, with all bar one agreeing that the outcome was fair: "At first I was not happy with the sentence, but I was glad the Elders were there for support, and the victim had more of an understanding of me." The offenders stated that the most powerful aspect of the circle sentencing experience was facing people from within their own community, people whom they had known their whole lives. Support people thought the opportunity for open discussion in a safe environment between offender and victim had huge impact: "He (the victim) had the opportunity to ask why did you do this to me? And also an opportunity to give his comments on the sentence." "I think it was great that they (the defendant) could talk to us. In a white man's court they just clam up."

All the defendants felt their behaviour had changed since attending the circle: "It had a positive impact on me...I have settled down." "I stay home more...feel more secure...my relationship has developed and I have more interaction with my children." "I don't drink and drive anymore...it has changed my life...I'm more work-oriented than I was before."

It's early days for number crunching on the recidivism of offenders that experience Indigenous justice, but it's looking good. A 2001 report by the Canadian Department of Justice found that "restorative justice programs, on average, yielded reductions in recidivism compared to non-restorative approaches to criminal behaviour". In one example, all 68 adults who participated in one Alaskan Indian circle didn't repeat the offences or violate any other laws during their probation periods. This may not sound like much but, in fact, it represents a significant break in the cycle of offending and re-offending that many young Indigenous people have fallen into.

The whole of society has much to learn from the early successes of the Indigenous justice paradigm. Its effectiveness with Indigenous offenders would surely translate to greater rehabilitation with non-Indigenous offenders also. Chris Vass sums it up nicely;

"We get better results, not only for the offenders, but for the victims and for the community, if we think a bit more laterally about how we can stop people from committing crimes. And locking people up, throwing the key away and putting them in a cell is not an answer. It's never been proved to be successful. In fact, all it seems to do is allow relatively minor offenders to meet people who are major offenders and learn the trade."

In New Zealand, the community based focus of the Indigenous justice approach is being applied to other areas, such as youth offending. Family group conferencing, strongly influenced by traditional Maori concepts of collective conflict resolution, unites young people, their families, and victims together to decide how best to deal with offending. Fragmenting the "corrective" process, labelling the offender a "misfit" and "social menace", and removing him/her from the community are bandaid solutions that serve only to reinforce negative behaviour. The key to true healing and resolution for victims, offenders, their families and communities is to treat crime as a natural human error requiring positive, corrective intervention by families and community leaders in ways that retain offenders as an integral part of the community. After all, we are all part of a community, with our own histories, kin and non-kin relationships, and meaningful ways of being in the world.