Papers by Elena Marchetti
Macquarie LJ, 2005
Over a decade after the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) tabled its N... more Over a decade after the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) tabled its National Report, the report and its 339 recommendations are still cited whenever suggestions are made or policies are introduced which target the over-representation of Indigenous people in custody. It is therefore timely and relevant that its appropriateness in dealing with Indigenous over-representation, and with Indigenous marginalisation generally, be critically reassessed. In particular, there is a need to consider whether the investigative procedures undertaken by the RCIADIC and the political constraints surrounding its inception resulted in non-orthodox information and perspectives being excluded. This paper uses data collected from interviews with 48 people associated with the RCIADIC in order to critically reflect upon the way in which the inquiry was established and conducted to determine whether it was constrained in its ability to fully consider the problems confronting Indigenous Australians when dealing with the Australian justice system.
Criminal Justice and Behavior
Pre-sentence reports (PSRs) provide important information about an individual’s background and ci... more Pre-sentence reports (PSRs) provide important information about an individual’s background and circumstances to assist judicial officers in the sentencing process. The present study analyzed PSRs for 63 Aboriginal and Torres Strait Islander people sentenced by either an Indigenous sentencing court or a mainstream court in the Australian State of Victoria. Using natural language processing techniques, our analyses revealed few differences between PSRs conducted for each court. However, PSRs were found to predominantly feature key words that are risk-based, with mainstream court PSRs more negatively worded than the Indigenous sentencing court’s PSRs. This may have been due to the inclusion of results from a risk and need assessment tool. Pro-social factors did comprise more than one third of extracted keywords, although the number of strength-based culture-related keywords, in particular, was low across PSRs in both courts. It is possible that courts may not be receiving all the infor...
There is a growing pool of research on court outcomes in sentencing Indigenous people but relativ... more There is a growing pool of research on court outcomes in sentencing Indigenous people but relatively little research on the information available to sentencing courts to consider Indigenous background. Although Australian courts mostly have discretion to consider Indigenous circumstances, such consideration depends on submissions and reports tendered in court. The High Court in Bugmy v The Queen (2013) stated “it is necessary to point to material tending to establish [the defendant’s deprived] background” if it is to be relevant in sentencing.1 The main repository of court information on defendant background is counsel submissions and, where the defendant is facing imprisonment, Community Corrections’ Presentence Reports. Based on 18 interviews with judicial officers, lawyers and court staff in New South Wales and Victoria, this article identifies the need for more information on relevant Indigenous background factors in sentencing. The introduction of discrete Indigenous community ...
Oxford Handbooks Online, 2016
In common law countries that have been colonized, the colonized peoples are overrepresented in cr... more In common law countries that have been colonized, the colonized peoples are overrepresented in criminal justice statistics and in rates of incarceration. Sentencing laws and court processes have, for some time, undergone changes to reduce or address the continuing rise of indigenous over-incarceration. This essay focuses on three colonized common law countries: Canada, Australia, and New Zealand, in examining what legal strategies have been used to transform judicial reasoning and practice to take into account the particular experiences and circumstances of indigenous offenders. Whether these changes have improved the situation in practice is explored in this essay. The essay concludes by examining what role and responsibilities judicial officers should have in administering justice for peoples who have been, and continue to be, dispossessed of their culture, laws, and language by the process of colonization, and suggests directions for future research.
In this paper, I explain why the (previous) inquiry itself did not focus more on the problems con... more In this paper, I explain why the (previous) inquiry itself did not focus more on the problems concerning Indigenous women. The explanation relies on interview data collected from 48 people who either worked in the six main offices of the RCIADIC and Aboriginal Issues Units ('AIUs') established for the inquiry, or who were involved in some other capacity with the RCIADIC. It is important to consider the reasons why the problems confronting Indigenous women were not fully explored by the RCIADIC inquiry since it informs future inquiries into race-related problems. Many of the inquiries and studies which delve into the lives of Indigenous people are headed by non-Indigenous people who continue to view Indigenous communities as homogeneous; that is, they fail to consider the different experiences of Indigenous men and women. The studies conducted often make recommendations for the whole community rather than specific groups within those communities, and are based on consultation...
Although the Australian Royal Commission into Aboriginal Deaths in Custody (RCIADIC) tabled its N... more Although the Australian Royal Commission into Aboriginal Deaths in Custody (RCIADIC) tabled its National Report over a decade ago, its 339 recommendations are still used to steer Indigenous justice policy. The inquiry is viewed by many policy makers and scholars as an important source of knowledge regarding the post-colonial lives of Indigenous people. It began as an investigation into Indigenous deaths in custody, but its scope was later broadened to encompass a wide range of matters affecting Indigenous Australians. There have been numerous criticisms made about the way the investigation was conducted and about the effectiveness and appropriateness of the recommendations made. Of particular relevance to this thesis are those criticisms that have highlighted the failure of the RCIADIC to consider the problems confronting Indigenous women. It has been claimed that although problems such as family violence and the sexual abuse of Indigenous women by police were acknowledged by both t...
Indigenous people face procedural barriers in bringing actions in the Australian legal system, su... more Indigenous people face procedural barriers in bringing actions in the Australian legal system, such as the need to frame their claims within Western cultural constructs of individual actions and economic loss, and to transform their stories into the written evidence privileged by courts. But an even greater barrier is the hidden Whiteness of Australian courts, which places Indigenous people as the 'Other ' who must either change their claims to conform with 'our ' requirements, or be rejected. The case study explored in this article shows how this Whiteness exhibits itself in procedural requirements; in its racialising of Indigenous people, their claims and evidence; and in its assumptions of essentialist views of Indigenous culture as something fixed in the past. Judges and lawyers need to step outside their personae as Whites faced with Others, to adopt one where 'us ' embraces Indigenous people and culture too.
presented at the 11th International Association of Gerontology and Geriatrics Asia/Oceania Region... more presented at the 11th International Association of Gerontology and Geriatrics Asia/Oceania Regional Congress, 23-27 October 2019, Taipei, Taiwan
Violence against women, Jan 13, 2016
Mainstream sentencing courts do little to change the behavior of partner violence offenders, let ... more Mainstream sentencing courts do little to change the behavior of partner violence offenders, let alone members of more socially marginal groups. Indigenous offenders face a court system that has little relevance to the complexity of their relations and lived experiences. Assisted by respected Elders and Community Representatives, Australian Indigenous sentencing courts seek to create a more meaningful sentencing process that has a deeper impact on Indigenous offenders' attitudes and, ultimately, their behavior. Drawing from interviews with 30 Indigenous offenders, we explore the ways in which the courts can motivate Indigenous partner violence offenders on pathways to desistence.
Indigenous people face procedural barriers in bringing actions in the Australian legal system, su... more Indigenous people face procedural barriers in bringing actions in the Australian legal system, such as the need to frame their claims within Western cultural constructs of individual actions and economic loss, and to transform their stories into the written evidence privileged by courts. But an even greater barrier is the hidden Whiteness of Australian courts, which places Indigenous people as the 'Other' who must either change their claims to conform with 'our' requirements, or be rejected. The case study explored in this article shows how this Whiteness exhibits itself in procedural requirements; in its racialising of Indigenous people, their claims and evidence; and in its assumptions of essentialist views of Indigenous culture as something fixed in the past. Judges and lawyers need to step outside their personae as Whites faced with Others, to adopt one where 'us' embraces Indigenous people and culture too.
Over the past several decades in countries like Australia, the response to crime is moving in two... more Over the past several decades in countries like Australia, the response to crime is moving in two directions. One tack is innovative: it promises to change established forms of criminal justice, to do justice differently. The other tack is repetitive: it promises to intensify established forms of criminal justice, to do justice more efficiently, and often more punitively. Crime control and justice policies have always been varied, but as O"Malley says (1999, p 176), there now exists an unprecedented "state of penological inconsistency". Alternative justice forms, such as meetings between victims and offenders, or magistrates who take an active interest in helping defendants, sit alongside mandatory sentences for certain repeat offenders. Put simply, policies of inclusion sit alongside those of exclusion in any one country, and countries vary in the degree to which their policies are tipped more toward inclusion than exclusion. This chapter reviews and compares three innovative and inclusion-oriented approaches to justice: restorative justice, contemporary forms of Indigenous justice, and therapeutic jurisprudence. The ground was softened for all three, with social movements in the 1960s and 1970s calling for more humane and effective responses to offenders and victims in the criminal process, and with a variety of justice practices, such as informal justice and popular justice, which aimed to vest more authority in lay actors and community organisations. The three approaches share affinities in that they emphasise the need for more effective forms of 2 communication in relating to and helping offenders desist from crime and reintegrate into a community. They emerged with force during the 1990s: all identified failures with mainstream criminal justice, and all sought methods of "doing justice" in different ways. Each approach emerged independently, but connections are now being drawn among them. For example, therapeutic jurisprudence proponent David Wexler (2004, fn 15) merges therapeutic jurisprudence with restorative and Indigenous justice when he says that "therapeutic jurisprudence … [is similar] to concepts such as restorative justice … concepts that originated in tribal justice systems of Australia, New Zealand, and North America". Leading restorative justice and Indigenous justice advocates have also traced connections (Braithwaite 2002; Yazzie & Zion 1996; Zion 2001-02). But there are key differences. Restorative justice aims
Since 1999, a number of Indigenous sentencing courts have been established in Australia that use ... more Since 1999, a number of Indigenous sentencing courts have been established in Australia that use Indigenous community representatives to talk to a defendant about their offending and to assist a judicial officer in sentencing. The courts are often portrayed as having emerged to reduce the over-representation of Indigenous people in the criminal justice system and to address key recommendations made by the Royal Commission into Aboriginal Deaths in Custody, in particular, those centred on reducing Indigenous incarceration, and on increasing the participation of Indigenous people in the justice system as court staff or advisors. They are also said to reflect partnership practices that were recommended in Justice Agreements made throughout Australia between state governments and Indigenous organisations. In this article, we argue that these courts have broader aims and objectives in that they seek to achieve a cultural and political transformation of the law, which is not as evident in other new justice practices such as restorative justice or therapeutic jurisprudence. There is a great deal of variation in the way the Indigenous sentencing courts have been established in each Australian State and Territory and in the practices they use. Despite the variations we show that the courts have common goals: to make court processes more culturally appropriate and to increase the involvement of Indigenous people (including the offender, support persons and the local community) in the court process. Although advocates of new justice practices associate Indigenous sentencing courts with restorative justice and therapeutic jurisprudence, we argue that while they have some elements in common, Indigenous courts have distinct aims and objectives. By analysing practices, protocols and other empirical materials, we show why Indigenous sentencing courts deserve a unique theoretical and jurisprudential model and why they are better viewed as being in a category of their own. Disciplines Disciplines Law Publication Details Publication Details E. Marchetti & K. Daly, 'Indigenous sentencing courts: towards a theoretical and jurisprudential model' (2007) 29 (3) Sydney Law Review 415-443.
In recent years there have been many attempts aimed at transforming the relationship between Indi... more In recent years there have been many attempts aimed at transforming the relationship between Indigenous people and the criminal justice system in Australia. Some of these attempts have been directed at policing relationships, including such measures as community and night patrols. Others have focused on prisons, including attempts at greater cultural accommodation, and even the building of Aboriginal prisons. The focus of this article, however, is on the relationship between Indigenous people and court processes, especially in regards to sentencing. In particular, the article explores innovative sentencing courts, practices and principles introduced across the Australian jurisdictions specifically aimed at Indigenous offenders. These include circuit courts in regional and remote centres where judicial officers seek the advice of community members when making sentencing determinations; Indigenous sentencing courts in urban cities and regional towns where Elders or community representatives are involved in the sentencing court process; and now the cross-border justice scheme where judicial officers and legal practitioners from the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Lands in the Northern Territory, South Australia and Western Australia are engaged in 'processing' offenders from 'cross-border' jurisdictions. These processes are often touted as providing a more culturally appropriate and inclusive courtroom experience for offenders. However, there has been little discussion about what that means in practice for the non-Indigenous legal players. The article begins with a brief discussion of the context in which these processes have arisen, followed by an overview of these processes to establish what has been done. It then looks at the extent to which formal, publicly available guidance is available to judicial and legal officers to assist them in being more culturally sensitive. We then discuss these findings in the context of principles underpinning problem-solving courts and therapeutic jurisprudence, and within a postcolonial framework, to help determine the emotive or relational characteristics and practices that non-Indigenous legal participants might be required to adopt in Indigenous-focused sentencing practices. We do not examine the stated and unstated assumptions underpinning such processes, or the informal training and discussion judicial officers and lawyers may receive, which are important topics, but beyond the scope of this article.
Qualitative health research, Jan 8, 2014
As our population is aging, the global prevalence of dementia is rising. Recent extensive reviews... more As our population is aging, the global prevalence of dementia is rising. Recent extensive reviews of the dementia literature highlight a clear need for additional qualitative research to address the experiences of people with dementia and their carers. To date, the vast majority of published dementia research is quantitative in nature and, perhaps not surprisingly, attracts the bulk of government funding. In contrast, qualitative dementia research is poorly resourced and less frequently published. Although a myriad of factors are responsible for this dichotomy, we propose that inadequate funding represents the "elephant in the room" of dementia research. In this article, we describe and emphasize the need for qualitative dementia research, highlight existing barriers, and outline potential solutions. Examples of barriers are provided and theoretical underpinnings are proposed.
The Australasian medical journal, 2014
Driving is a complex task, yet some people with dementia are capable of driving safely. As drivin... more Driving is a complex task, yet some people with dementia are capable of driving safely. As driving a vehicle is a privilege and not a right, clinicians are often called upon to provide guidance regarding their patients' ability to drive safely. The Australian Bureau of Statistics has predicted that by 2056, one in four Australians will be aged over 65. Older members of our community are increasingly dependent upon the private car as their preferred, and in some cases only viable, mode of transport. Given that the prevalence of dementia rises with age, we can expect an increased number of drivers with dementia on our roads. As outlined in the National Health and Medical Research Council 2013-15 Strategic Plan, Australian health ministers have designated dementia and injury prevention as national health priority areas.12 Thus, there now exists both an impetus and an opportunity to address the issue of driving and dementia on a national level. The purpose of this editorial is to consider: (1) the social impact of a loss of licence; (2) driver and health professional obligations to report conditions that can adversely affect driving; and (3) the response of motor vehicle insurers to the issue of driving with dementia.
Internal Medicine Journal, 2013
Older Australians are increasingly reliant on automobiles as their sole form of transport. As our... more Older Australians are increasingly reliant on automobiles as their sole form of transport. As our population is ageing and the prevalence of dementia is increasing, it is anticipated that the number of drivers with dementia will rise over time. Much of the literature relating to driving and dementia focuses on safety rather than mobility. The objective of this paper is to highlight several topical ethical issues that pertain to Australian drivers with dementia. It is recommended that future research, policy and practice should centre on the crucial mobility and transport needs of our senior citizens.
Indigenous Courts, Culture and Partner Violence, 2019
This chapter discusses the different ways in which Elders and Community Representatives participa... more This chapter discusses the different ways in which Elders and Community Representatives participate in the process, what they hope to achieve in relation to Indigenous partner violence, and to what extent conflicts within and between families is managed. How and why the presence of Elders and Community Representatives make sentencing hearings more powerful for Indigenous partner violence offenders is explained using interview data collected from Indigenous sentencing court workers, Elders, Community Representatives, magistrates, defence lawyers, prosecutors and domestic and family violence service providers. The second part of the chapter relies on interviews of 30 offenders and 29 victims whose partners had been through an Indigenous sentencing court. The analysis compares victim and offender perceptions of justice of Indigenous sentencing and mainstream court processes.
Canadian Journal of Law and Society / Revue Canadienne Droit et Société, 2020
For Australia’s Aboriginal and Torres Strait Islander people, writing is predominantly about arti... more For Australia’s Aboriginal and Torres Strait Islander people, writing is predominantly about articulating their cultural belonging and identity. Published creative writing, which is a relatively new art form among Aboriginal and Torres Strait Islander prisoners, has not been used as an outlet to the same extent as other forms of art. This is, however, changing as more Aboriginal and Torres Strait Islander rappers and story-writers emerge, and as creative writing is used as a way to express Aboriginal and Torres Strait Islander empowerment and resistance against discriminatory and oppressive government policies. This article explores the use of poetry and stories written by Aboriginal and Torres Strait Islander male prisoners in a correctional facility located in southern New South Wales, Australia, to understand how justice is perceived by people who are (and have been) surrounded by hardships, discrimination, racism, and grief over the loss of their culture, families, and freedom.
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Papers by Elena Marchetti