Snapshot: Some differences between Indigenous and non-Indigenous processes for the resolution of disputes and wrongdoing

Aboriginal and Torres Strait Islander dispute resolution

Western dispute resolution

The close family, elders and wider community work out what the dispute or wrongdoing is about, who it has affected, and how it will be resolved or punished.

Strangers (external professionals) determine the nature of the dispute or wrongdoing, and how it will be resolved or punished.

Punishment and peacemaking processes are made by consensus among all participants, according to Aboriginal and Torres Strait Islander laws and legal precedent. The aim is both personal punishment and restoration of the wider social equilibrium and collective identity.

Punishment is determined according to formalised laws and legal precedent. Peacemaking and restoration of collective identity are not considerations, although individual rehabilitation is.

Participants take into account not only the impact on the ‘victim’, but also the wider, critical factors of social and religious impact.

The impact of the dispute or wrongdoing on the ‘victim’ may be taken into account by the court.
‘Offenders’ may make submission as to their character to the court.

The people directly involved in the dispute (victims and offenders) are also involved in the customary law process, including determining innocence or guilt and advocating punishment or other restorative solutions.

External advocates are used.
The people involved in the dispute (victims and offenders) are generally held at arm’s length from judgement of the evidence, determination of guilt and the punishment.

Decision making is collective and by consensus, sometimes taking considerable time and negotiation.

Decision making is hierarchical and formalised through institutions such as courts, hearings, professional members of the judiciary and jury systems.

A wider group of people may be included in the punishment, peacemaking and compensation.
Restorative justice is the goal where satisfaction and healing between families and the ‘victim’ and ‘offender’ are of paramount concern in resolution and punishment.

Only the ‘offender’ is punished.
In the adversarial legal system, the level of satisfaction among the wider set of people who feel affected by the dispute or wrongdoing is not a factor in sentencing.