THE VICTORIAN KOORI COURT. THERAPEUTIC JURISPRUDENCE AT A NEW COALFACE
IAN L GRAY *
INTRODUCTION
Reform and innovation should be a continuous process in courts. As in other countries, courts in Australia in recent years have both driven reform and been responsive to government reform initiatives. Most of the action has been in Magistrates' Courts - or as I prefer to call them, the "People's Courts".
For me the most significant development in courts in Victoria over the last two or three decades has been the introduction of new divisions within the Magistrates' Court - namely the Koori Court and the Drug Court. Each in its own way, adopts a "problem solving" approach to sentencing defendants charged with a range of criminal offences. In each the procedures reflect some of the principles of therapeutic jurisprudence. In this paper I will focus particularly on the Koori Court. It is unique, I think, whilst the Drug Court is similar in concept and functioning to many of the Drug Courts in the United States.
Like John Willis1, who describes Magistrates' Courts as 'more accessible to the general community', and like others who remind us that Magistrates' Courts are 'eighty per cent people and twenty per cent law', I have always felt, as a Magistrate in the Northern Territory and in Victoria, that there is a unique, robust and close connection between the Magistrate and the people - all of those in the passing parade of humanity through the court. There is a particular appeal for me in the immediacy of the eyeball to eyeball justice that we do as Magistrates. We preside over a 'court of the people'.
The new divisions of the Magistrates' Court of Victoria have taken their place along side a number of other recent innovations and court initiated developments designed to provide a better integrated, more comprehensive range of services and supports to court users and to Magistrates.
The Koori Court is very much a "People's Court" - a Court of the Koori people. Above all though, and what differentiates the Koori Court from other initiatives, is that it is a clear and direct legislative recognition of cultural difference and historical disadvantage.
BACKGROUND
In April 2002, the Attorney-General of Victoria, Rob Hulls, introduced the Magistrates' Court (Koori Court) Bill2 into the Parliament. The purposes of the legislation are described in the legislation as:-
(a) to establish a Koori Court Division of the Magistrates' Court; and
(b) to provide for the jurisdiction and procedure of that Division with the objective of ensuring greater participation of the Aboriginal community to the sentencing process of the Magistrates' Court through the role to be played in that process by the Aboriginal elder or respected person and others.
In his second reading speech, the Attorney-General said:-
"Together, this government and the broader community must be prepared to experiment with inclusive, innovative, culturally appropriate and modern approaches to strategically reduce Aboriginal overrepresentation within the criminal justice system. The Koori court represents a fundamental shift in the way in which we as a community deal with Aboriginal offenders.
This initiative will give a clear message to the courts and the wider community. By adopting this initiative our government intends to incorporate Aboriginal knowledge, skills, values, cultural beliefs and practices in the legal system.
The key to understanding the need for a Koori court is an acceptance that historically Aboriginal offenders often come from the most disadvantaged of backgrounds, and that they are often victims themselves. Only negotiated innovation can and will address this problem.
What is a Koori court?
In essence, the Koori Court is an alternative way of administering sentences so that court processes are more culturally accessible, grounded in Aboriginal communities' efforts to promote rehabilitation and impose sanctions which are comprehensible to the aboriginal community. The key emphasis is on creating an informal and accessible atmosphere and allowing greater participation by the Aboriginal Community through the Koori elder or respected person. Aboriginal justice worker, indigenous offenders and their extended families or wide group of connected kin, and if desired, victims, in the court and sentencing process. It aims to reduce perceptions of intimidation and cultural alienations experienced by Aboriginal offenders.
It focuses on the individual through close collaboration with family, community service provides and criminal justice agencies."3
There was bipartisan support in the Victorian Parliament for the creation of the Koori Court which was established by amendment of the Victorian Magistrates' Court Act 1989.
The legislation did not create new sentencing orders. It preserved the role of the Magistrate as solely responsible for the formal sentencing decision but facilitated a consultative and highly participatory process in the lead up to the making of that decision.
Koori Courts have been established as a direct response to a commitment made by the Victorian Government as part of the Victorian Aboriginal Justice Agreement which was signed in June 2000. The Agreement was directed at the chronic over-representation of Aboriginal people at every level of the criminal justice system. That issue had come to national prominence in Australia in 1991 with the release of the Royal Commission into Aboriginal Deaths in Custody (RCIADC). The statistics that emerged from that Commission revealed Indigenous Australians to be 11 times more likely than non-Indigenous Australians to be incarcerated in an adult prison. Of the 339 recommendations made by the Royal Commission one of the most important was that imprisonment should be a sanction of last resort and that a wider range of sentencing options should be utilised.
Despite the recommendations of the RCIADC the number of Aboriginal prisoners in custody increased in Victoria between 1995 and June 2001 by 17.2%. In his second reading speech, the Attorney-General emphasised that "we do not pretend that the Koori Court is the only answer to address the alarming number of Aboriginal people represented within our justice system. The Koori Court is therefore one strategy from a policy point of view in the overall campaign to reduce that over-representation. At the same time it is intended to increase Koori participation in the legal system and this is the clearly demonstrated strength of the Koori Courts so far. While the Koori Court doesn't represent recognition of the body of Aboriginal law as such it is a clear attempt to involve the Indigenous community in the sentencing process."
The keys to the operation of the Koori Court are its participatory sentencing process and the pre-eminent role played by Koori "Respected Elders". The level of engagement in the new process and the Koori response to it are the best measure of its success or failure. So far, by that measure, it can be regarded as an outstanding success.
THE OBJECTIVES
The objectives of the Koori Court, from a criminal justice perspective, are to-
a. Tailor sentences appropriate to offender needs
b. Reduce failures to appear
c. Decrease breaches of Court orders
d. Reduce recidivism
e. Provide general deterrence
f. Increase community safety.
From an Aboriginal community perspective, they are to:-
a. Increase Aboriginal participation in the administration of the law
b. Increase positive participation by Koori offenders and their community
c. Increase the accountability of the Koori community, families and offenders
d. Promote and increase community awareness about community codes of conduct and standards of behaviour; and
e. Promote an increased community awareness about the Koori Court generally.
After a long history of alienation from positive engagement in the criminal justice process, Koori people have enthusiastically embraced the initiative. The opening of each Koori Court has been marked by celebration and ceremony. At the opening of each a smoking ceremony has been conducted by a senior man from the land in which the court is located, before the formal opening by the Attorney-General.
Each time, the Court was full of Aboriginal and non-Aboriginal people. I have never seen an atmosphere like it in a court. These events were infused with the spirit of reconciliation and an excited commitment to a new chapter in justice for Victorian Kooris.
This ceremonial emphasis was carried over into the design and fitting out of the courtrooms. In the Koori Courts the Magistrate, defendant, prosecutor, Aboriginal justice worker, correctional services staff and defendants, lawyer and family all sit around the same table - the Bar table in the Courtroom. The Court is decorated with the Australian, Aboriginal and Torres Strait Islander flags and artwork by Aboriginal artists is hanging on the walls.
At the start of each session of the Court the presiding Magistrate welcomes participants and members of the public and acknowledges the Aboriginal custodianship of the particular land by reference to the land owning groups. Different Magistrates have different styles of course but the style I like is the one where there is a clear reference to the fact that the Court has been fitted out specially in acknowledgement of, and respect for, a different culture, and that the Court process will acknowledge the importance of those cultural differences - in particular through role played by the Respected Elders and the Aboriginal Justice Worker
By legislative prescription the Magistrate is the sentencing decision maker and this is also made clear at the outset of proceedings. However a balance is struck by the practice of Magistrates openly consulting in the courtroom with the Respected Elder or Elders about the appropriate sentencing outcome.
The role of the Elders is absolutely critical and the moral authority that they carry when speaking to defendants or engaging with others in the courtroom is for me the most powerful element in the process.
From the defendants' point of view, I am sure that the relaxed procedure, the lessened formality, the more intimate physical environment and the presence of other Kooris in the room all promote a degree of comfort, or at least capacity to engage with the process.
The old sense of alienation from courts evaporates in this new environment. This is a court that Kooris find relevant. Fundamentally the Koori Court initiative has introduced a whole new sentencing process. In it the adversarial system gives way to an inquisitorial and highly participatory approach. Magistrates and Elders encourage participation, not only by the defendant and his or her counsel, but by the defendant's family and other members of the community who may know the defendant or his family and wish to express a view about the available sentencing options and the supports within the community, and to put forward ideas and proposals to assist the Magistrate and Respected Elders in their consideration of the options.
THERAPEUTIC JURISPRUDENCE
In the leading text "Judging in a Therapeutic Key" Edited by Bruce J Winick and David B Wexler, the authors say this:
"Therapeutic jurisprudence focuses our attention on the traditionally under-appreciated area of the law's considerable impact on emotional life and psychological well-being. Its essential premise is a simple one: that the law is a social force that can produce therapeutic or antitherapeutic consequences. The law consists of legal rules, legal procedures, and the roles and behaviours of legal actors, like lawyers and judges. Therapeutic jurisprudence proposed that we use the tools of the behavioural sciences to study the therapeutic and antitherapeutic impact of the law, and that we think creatively about improving the therapeutic functioning of the law without violating other important values, such as Gault-like due process concerns."
I do not contend that the Koori Court utilises the tools of the behavioural sciences in a systematic sense. However there is a therapeutic quality in the operation of the Koori Court. I strongly believe the interaction between the participants around the sentencing table - the sentencing discourse if you like - and the time and space given to the parties in an appropriate cultural setting, creates an environment which can be genuinely described as "therapeutic". It advances a more positive emotional and psychological response to legal institutions and process without diluting the requirement for accountability.
The procedures reflect an acceptance that not only the laws, but its processes do have an impact (often a dramatic one) on the emotional life and psychological well-being of those involved. The way justice is being done in the Koori Courts in Victoria strongly promotes and reinforces the therapeutic value of accountability but does so in a non-intimatory, culturally appropriate setting.
The focus on solving the problems of defendants, together with holding them accountable for their actions, qualifies this Court as a "problem solving" court. The short history of the way justice has been done in the Koori Courts also qualifies it as earning the description of a court employing "therapeutic" process.
From my observations, and the anecdotal evidence so far, most of the objectives of the initiatives are being achieved. It is still early days; the formal evaluation and statistical data are not yet available for any analysis, but I can report that failures to appear, breaches of court orders and recidivism are all down.
Much has been said about whether Koori Courts are a "soft option" or not. They are not. I say this based on the experience of sitting in these Courts and watching defendants reacting to the statements of Respected Elders, and listening to defendants speak out in the presence of their families and others, a phenomenon that almost never occurs in the ordinary formal court process. This is not an easy thing to do. It is not a "soft' process and it was not intended to be. The expectation of rigorous accountability is reinforced whenever the court sits, by the role and through the voice of the Respected Elders. There is a tangible response to this - far more than to the anonymous magisterial voice.
FEEDBACK AND REACTION TO THE EXPERIENCE OF THE KOORI COURT
The regional newspaper, The Shepparton News of 19th June 2003 reported that a 20 year old Shepparton woman who spent her teenage years in and out of Court has said the "Koori Court turned her life around". This woman is reported as saying that "the respect she held of the Elders made her feel comfortable during her appearance and, in fear of being judged by them again, forced her to take steps to find full-time employment."
In February this year the Australian Broadcasting Co-operation's Radio National program "The Law Report" carried a story on Shepparton's Koori Court. One defendant was interviewed and said the following:-
"Well in the Koori Court like you feel like the size of a ant. When they talk to you, you do, you start getting a lump in your throat, you feel like, you know, crying, I've cried even in there, and they make you try to understand, we're not above the law, and we get up and say what we have to say about ourselves, and they listen to what we say and feed back what they want to say to the ones that have been in trouble by the law."
"Just wake up to meself, you know. Smell the roses, stay away from trouble, stay away from the motor bikes; that was my big issues going out, getting drunk and then jumping on a motor bike. It's all about like respect, respecting your elders, because once you respect your elders, you get that respect back, and that's something that's most important in the Koori Court, you've got to show you're going to be more serious about you're not, you know, going to break the law any more, and once you show that respect towards the elders and towards the judge, well they're going to look at you and say, 'Look OK, we'll give him a little bit of a chance, give him a bit of a go. Next time you break, well ta-ta, you know, you know, you're going to jail."
Central to the success or failure of the Koori Court is the way the police prosecutors play their role. The Court has had strong support from Victoria Police through the careful selection and training of prosecutors. I will quote now from a report prepared by the prosecutor at the Shepparton Koori Court, an insightful man with a commitment to the success of the project, but also with a clear eyed insistence on the importance of a transparent and strong prosecution element in that process. In a letter written in May 2002 (after 5 sittings at the Court in Shepparton dealing with approximately 30 offenders) he wrote to his commanding officers as follows:-
"The Koori Court has now sat 5 occasions at Shepparton and dealt with 31 offenders. Figures, however, can not tell the story of the motion that has charged the court during these sittings. One needs to have a more in depth look at the Koori Court Division of the Magistrates' Court to understand why.
Firstly, why have a Koori Court in the first place? This question was addressed by the Parliament on the second reading of the Magistrates' Court (Koori Court) Bill 2002.
There is an absolute need for full confidence in the police by the Elders and respected People, as their attitudes will be reflected in their behaviour when performing their function in the Koori Court. This in turn will be evidence to the offenders that are before them. An offender who sees disrespect of the police prosecutor for example by the Elder in Court will have disastrous counter productive effects. I am pleased to say that we are experiencing quite the opposite and the surprise on some of the offenders faces when seeing how the Elder has treated me with respect has led them to question their own beliefs. I have had dealings with some of these people since and they have all adopted a positive attitude towards me as opposed to an air of indifference or disdain.
All parties are working co-operatively together to achieve just outcomes as opposed to the normal adversarial nature of the court. In this atmosphere it is imperative that the prosecutor is able to say what is required, (for example in some cases; that this offender for these reasons requires a term of imprisonment).
These sentencing outcomes are culturally sensitive and tend so far to be having an effect. This is evidence in the high participation by the Koori community in the court sittings and the attitudes of the offences when they are before the Court. I have been prosecution on and off for seventeen years, over nine at Shepparton office and have never seen such participation before by a community in trying to assist the judicial process. This is further evident by the mentor programs that are being sent in place for both women and men.
The Elders and Respected Persons have all brought their own individual style and knowledge to the Court and have done so in a {parental} way, which has brought them admiration from all, not least offenders. At this point it is prudent to note that this is to my knowledge the first time in Victorian legal history that an Aboriginal Elder has been recognised as the respected person in society that they are. This legislation accords them the status that they had under pre colonial rule. In effect putting them on an equal footing with Justice of the Peace. This is I believe is a significant matter of Victorian legal history and for the local community at Shepparton.
I believe that the manner in which the Court is run is it's first success. Secondly, the unification of the various parties in working collaboratively together is another success so far.
I have arranged the attendance of a number of witnesses to be part of the court sittings, one vehicle accident victim had the offender in tears due to realisation of the harm she could have done to that victim, this is an example of another success, victim participation. The acceptance of the court by offenders thus far as being their court, that is a representative of both Koori and main stream law, has also been a real positive."
Other observers of proceedings have noted the emotional power of the engagement between defendants and Respected Elders, and the healing and cathartic nature of the proceedings. Cases have been reported to me where defendants have made statements about their lives and experiences after which there is barely a dry eye in the room. A very experienced observer of courts, and the criminal justice system, Carmel Benjamin, AM in writing to Aboriginal Elder Norma Langford in July last year had this to say:-
"It was indeed a great pleasure to meet you yesterday and my very warn congratulations on your work in the Koori Court. Professor and Mrs Yanay felt as privileged as I did to be present during the Hearings and we thank you.
The firmness mixed with kindness and compassion, shown to the young men who appeared before you, together with your obvious efforts to give them important insights into their antisocial behaviour and keep them out of prison, was such a marked contrast to court hearings that I have attended in the past. I am confident that, in offering them a 'new start' you will also have bolstered their self-esteem and given them an understanding of their own potential. These are, of course, important experiences for young me to be able to step forward into maturity. My sincerest congratulations."
It is obvious to me, and clear I think to so many people who have observed this Court, that it is possible to achieve a heightened respect for the criminal justice system - the Courts in particular - through processes which actively and effectively engage the participants in ways which show them respect, give them the confidence to speak and at the same time emphasise personal accountability.
Advocates still have an important role, the prosecution role remains essentially the conventional one (although the prosecutors engaged in the Koori Court pilots have been creative in their engagement in the sentencing discourse), and all in all the combination of the formal setting and an informal highly interactive process, produces a good model of doing justice.
After all, the courts will only be respected if they do justice in ways which people respect, understand and are able to engage in. Some cases have a higher degree of tension and probably call for a higher level of formality than others. The solemnity and seriousness of Court proceedings remains important but should always be subject to the overriding requirement that the process be one that is readily understood and readily engaged in by the participants. The Respected Elders actually add a level of weight and solemnity to the process in my view. The defendants generally engage with them respectfully. The families of the defendants appear to mirror that respect.
The fact that the cases take longer (about two or three 3 times as long as the case would ordinarily take before one Magistrate as part of a high volume list of cases in a summary Court) enhances the quality of the process. Time is taken for people to speak when they would ordinarily not be given an opportunity to do so. Time is taken to allow the defendant to comment two or three times on things that have been said - again when time would not ordinarily be available for that to be done.
In the vast majority of summary prosecutions in the ordinary courts the defendant does not speak at all; his or her lawyer does all the talking. Whilst this promotes efficiency, it minimises the engagement of the defendant. The fact that the Magistrate and Respected Elders are also assisted by the Aboriginal justice worker and specialist community corrections officers makes a world of difference. It also adds to the time taken for each case to be heard. When Aboriginal justice workers are able to speak about the family or community they do so around the same table and often in greater detail, than they could usually do in an ordinary court setting.
Even if the charge is simple and the prosecution case straightforward, the taking of extra time to hear from those with a real interest in the case and with a useful contribution to make, adds real quality to the procedural justice of the case at hand. Departments of Finance and Treasury will need to understand that the Koori Court and courts like it will hear and finalise fewer cases per day or per session than courts. It is a formidable challenge for us, but we need to persuade Governments that this is in fact a positive development - one that serves the interests of justice.
I have attached a long statement (Attachment 3) by a young man who appeared before the Koori Court at suburban Broadmeadows. A Court which can provide both the time and the environment in which a defendant is prepared to speak as fully, frankly and emotionally as this, is one with a clearly therapeutic quality. In the average busy court list in the Magistrates' Courts in Victoria, defendants would rarely get time to speak at this length, either directly or through their counsel. The court lists in the Koori Court are much shorter than in the conventional courts and each case takes between 2 to 4 times as long as it otherwise would. There is significant value in this slowed procedure with its full chance of engagement by defendant, defendant's family and others.
When justice is seen through only the prism of output "widgits", the meeting of statistical targets, and an emphasis on high volume clearance, there is always a risk that its quality will suffer.
The Koori Court represents the absolute opposite of this approach. It is slow but it is good. It is not high "output" justice, but it is high quality justice. It is precisely the kind of justice the community should be prepared to pay for.
NOTES
* Chief Magistrate of Victoria
1 Willis, John; "The Magistracy: The undervalued workhorse of the Court System", Law in Context, Special Issue - Vol. 18, No. 1. p. 129.
1 I have set out the relevant statutory provisions as 'Attachment 1" to this paper.
1 The complete second reading speech is set out at 'Attachment 2' to this paper.
The Victorian criminal justice system is based on the orthodox adversarial in-court processes. However in recent years a number of departures from this traditional method have been developed. Magistrates in Victoria have become increasingly interventionist in the sentencing process. The vast majority of Victorian criminal prosecutions result in pleas of guilty to one or more charges. The sentencing hearing which proceeds after the plea of guilty combines elements of both the adversarial and the inquisitorial process. Magistrates and Judges are informed by defence submissions, prosecutions submissions, reports by experts, assistance from such court based services as disability experts, psychiatric nurses, drug and alcohol commissions and advisers, bail support advocates and so on. The sentencing process in Victorian Magistrates' Courts has become a blend of adversarial and inquisitorial methods.
Many courts are well along an evolutionary track from the relatively rigid adversarial sentencing hearing, to a more fluid, procedurally relaxed, judicially interventionist approach to the sentencing process - particularly in Magistrates' Courts. (It is in Magistrates' Courts that approximately 90% of Australian criminal prosecutions are commenced and finalised).
In Victoria the Koori Court has taken this evolutionary trajectory further and added a new dimension to sentencing. Not only does the Koori Court facilitate an acknowledgement of Aboriginal culture, it applies a problem solving approach to sentencing and it utilises an explicitly inquisitorial, and effective method of information gathering prior to sentence. There is every reason for courts to continue to experiment with a blending of inquisitorial and adversarial methods, provided that rights are not prejudiced and that natural justice remains the procedural touchstone.
Attachment 1
The key provisions of the legislation are as follows:-
4D. Establishment of Koori Court Division
(1) The Court has a Koori Court Division.
(2) - - -
(3) - - -
(4) The Koori Court Division must exercise its jurisdiction with as little formality and technicality, and with as much expedition, as the requirements of this Act and the Sentencing Act 1991 and the proper consideration of the matters before the Court permit.
(5) The Koori Court Division must take steps to ensure that, so far as practicable, any proceeding before it is conducted in a way which it considers will make it comprehensible to-
(a) the defendant; and
(b) a family member of the defendant; and
(c) any member of the Aboriginal community who is present in court.
(6) Subject to this Act, the regulations and the rules, the Koori Court Division may regulate its own procedure.
4E. Jurisdiction of Koori Court Division
The Koori Court Division has-
(a) the jurisdiction to deal with a proceeding for an offence given to it by section 4F; and
(b) jurisdiction to deal with a breach of a sentencing order made by it (including any offence constituted by such a breach) or variation of such a sentencing order; and
(c) any other jurisdiction given to it by or under this or any other Act.
4F. Circumstances in which Koori Court Division may deal with certain offences
(1) The Koori Court Division only has jurisdiction to deal with a proceeding for an offence (other than an offence constituted by a breach of a sentencing order made by it) if-
(a) the defendant is Aboriginal; and
(b) the offence is within the jurisdiction of the Magistrates' Court, other than-
(i) a sexual offence as defined in section 6B(1) of the Sentencing Act 1991; or
(ii) an offence against section 22 of the Crimes (Family Violence) Act 1987 (breach of intervention order or interim intervention order) or an offence arising out of the same conduct as that out of which the offence against section 22 arose; and
(c) the defendant-
(i) intends to plead guilty to the offence; or
(ii) pleads guilty to the offence; or
(iii) intends to consent to the adjournment of the proceeding to enable him or her to participate in a diversion program; and
(d) the defendant consents to the proceeding being dealt with by the Koori Court Division.
(2) Subject to and in accordance with the rules-
(a) a proceeding may be transferred to the Koori Court Division, whether sitting at the same or a different venue; and
(b) the Koori Court Division may transfer a proceeding (including a proceeding transferred to it under paragraph (a)) to the Court, sitting other than as the Koori Court Division, at the same or a different venue.
(3) Despite anything to the contrary in this Act, if a proceeding is transferred from one venue of the Court to another, the transferee venue is the proper venue of the Court for the purposes of this Act.
4G. Sentencing procedure in Koori Court Division
(1) This section applies to the Koori Court Division when it is considering which sentencing order to make in respect of a defendant.
(2) The Koori Court Division may consider any oral statement made to it by an Aboriginal elder or respected person.
(3) The Koori Court Division may inform itself in any way it thinks fit, including by considering a report prepared by, or a statement or submission prepared or made to it by, or evidence given to it by-
(a) a Koori Court officer employed as an Aboriginal justice worker; or
(b) a community corrections officer appointed under Part 4 of the Corrections Act 1986; or
(c) a health service provider; or
(d) a victim of the offence; or
(e) a family member of the defendant; or
(f) anyone else whom the Koori Court Division considers appropriate.
(4) Nothing in this section affects the requirement to observe the rules of natural justice.
(5) This section does not limit-
(a) any other power conferred on the Court by or under this or any other Act; or
(b) any other specific provision made by or under this or any other Act for the making of any report, statement or submission, or the giving of any evidence, to the Court for the purpose of assisting it in determining sentence.
The Koori Court
Attachment 2
24 April 2002 ASSEMBLY
Title
MAGISTRATES' COURT (KOORI COURT) BILL
House
ASSEMBLY
Activity
Second Reading
Members
HULLS
Date
24 April 2002
Page
1128
MAGISTRATES' COURT (KOORI COURT) BILL
Second reading
Mr Hulls (Attorney-General)- I move:
That this bill be now read a second time.
The Magistrates' Court (Koori Court) Bill 2002 delivers on our government's commitment to establish a Koori Court pilot program for Victoria as outlined in the Victorian Aboriginal justice agreement. This illustrates the government's commitment to reconciliation and developing a strong partnership with the Victorian indigenous (Koori) communities.
The Victorian Aboriginal justice agreement is the first significant negotiated initiative launched by this government which maximises Aboriginal participation in the development of policies and programs in all areas of the justice system. Our government recognises that it is not possible to address the overrepresentation of Aboriginal people in the criminal justice system without also tackling the disproportionately high levels of Aboriginal disadvantage caused by the dispossession of traditional lands and the separation of families.
Together, this government and the broader community must be prepared to experiment with inclusive, innovative, culturally appropriate and modern approaches to strategically reduce Aboriginal overrepresentation within the criminal justice system. The Koori Court represents a fundamental shift in the way in which we as a community deal with Aboriginal offenders.
We do not pretend that the Koori Court is the only answer to address the alarming number of Aboriginal people represented within our justice system. Rather, it is one initiative of the government's and the Aboriginal community's agreement which encompasses the areas of prevention, accessibility, effectiveness of justice-related services and rehabilitation. It aims to improve the current startling statistics relating to indigenous contact with the criminal justice system in all its forms. The Koori Court will complement a number of existing and planned justice initiatives such as:
* the adult residential program;
* the cultural immersion program;
* mediation and dispute resolution programs;
* Koori family history service and link-up;
* community legal education;,
* improved relations between Victoria Police and the Aboriginal communities; and
* the increased number of indigenous bail justices.
This initiative will give a clear message to the courts and the wider community that there is a genuine commitment by this government to have real and meaningful participation in the justice system by the Aboriginal communities. By adopting this initiative our government intends to incorporate Aboriginal knowledge, skills, values, cultural beliefs and practices in the legal system.
To do so recognises the fact that Koori communities themselves are seeking means to have a greater input into the manner in which they govern their communities. This initiative recognises that Koori communities acknowledge the need for sanctions for unacceptable conduct and rehabilitation in a culturally appropriate fashion.
In South Australia, the Nunga Court has been operational for over two years. Based initially in Port Adelaide, the objective of this Court is similar to that of the Koori Court. In New South Wales and Queensland like models have been developed. Such courts have also been established in many overseas jurisdictions emanating from first nations' incorporation of their cultural beliefs and practices in the legal system. While indigenous courts have a number of common features, no two courts are identical.
The Victorian Koori Court has been developed after extensive analysis of the effective features of indigenous courts both in Australia and overseas. I emphasise that the Koori Court model is unique to Victoria, encompassing the best features of existing models whilst still acknowledging their cultural diversity expressed by the Victorian indigenous communities.
Why have a Koori Court?
The key to understanding the need for a Koori Court is an acceptance that historically Aboriginal offenders often come from the most disadvantaged of backgrounds, and that they are often victims themselves. Only negotiated innovation can and will address this problem.
The Royal Commission into Aboriginal Deaths in Custody recognised that Aboriginal Australians face a much greater risk than the general Australian population of becoming victims of violence, possibly up to 10 times greater in the case of homicide. Further, it is estimated that Aboriginal people are 11 times more likely than non-Aboriginal people to be placed in an adult prison and more likely to be remanded in custody than non-Aboriginal people (23.4 per cent compared to 13.8 per cent). The number of Aboriginal prisoners in custody at June 2001 has increased since 1995 by 17.2 per cent.
Further, in 2000-01 Victoria Police processed 4676 Aboriginal people -- an increase of 1118 people representing an increase of 31.4 per cent over five years.
The opportunity to establish a Koori Court acknowledges that it is essential to incorporate Aboriginal communities' cultural beliefs and practices.
It is intended to produce fair and equitable treatment for Aboriginal people in the justice system. It is also an opportunity to divert Aboriginal people away from prison where it is appropriate to do so. These aims are best achieved through a partnership between the Aboriginal community and government that reforms the justice system, addresses the underlying causes of criminal activity and fosters trust, understanding and commitment through the direct involvement and participation of the Aboriginal community in the justice system.
Community participation in the sentencing process not only increases the participation rate of the Aboriginal community within the justice system, but reflects the view that input by the offender's community is both an appropriate and potentially more effective method of sanctioning unacceptable conduct than traditional judicial decision-making models have been.
Indeed the courts and the community must recognise that present sentencing practices are doing little to reduce the rate of offending and that more creative uses of the sentencing processes are needed to enable Aboriginal communities to exercise greater flexibility and control over sentencing outcomes.
The Victorian Koori Court will be piloted over two years, commencing at Shepparton, with the expectation that the metropolitan pilot site -- Broadmeadows -- will be operational within six months after the commencement of the first pilot site. The selection of the location of pilot sites was the subject of extensive consultation with key stakeholders and a detailed analysis of data and statistics was conducted, the results distributed to the Aboriginal community for comment.
Accordingly, Shepparton has been chosen as the first regional location for the Koori Court due to the alarming statistics from the Shepparton region. In addition, the contributing factors as to why this site was selected was the availability of services for Koori Court participants, such as:
* drug and alcohol treatment;
* an indigenous women's mentoring program;
* well-developed indigenous community controlled social service providers such as Rumbalara Aboriginal Cooperative and the Burri Family Preservation Service and others, all of which reflect the commitment of these communities to resolving difficulties which are long standing and which often result in adverse interaction with law agencies; and
* access to social and emotional wellbeing counselling.
The government anticipates that the Koori Court will commence operation in Shepparton by August 2002 and Broadmeadows by the end of the year.
The objective of the Court is to actively include the Aboriginal communities within the justice system and allow for community involvement in the sentencing process. Input by the offender's community is arguably a more effective method of decision making; however the magistrate retains the ultimate decision-making authority and continues to be the sentencing agent. All sentencing dispositions are available to the Court including prison if this is deemed appropriate.
What is a Koori Court?
In essence, the Koori Court is an alternative way of administering sentences so that Court processes are more culturally accessible, grounded in Aboriginal communities' efforts to promote rehabilitation and impose sanctions which are acceptable and comprehensible to the Aboriginal community. The key emphasis is on creating an informal and accessible atmosphere and allowing greater participation by the Aboriginal Community through the Koori elder or respected person, Aboriginal justice worker, indigenous offenders and their extended families or wide group of connected kin, and if desired, victims, in the Court and sentencing process. It aims to reduce perceptions of intimidation and cultural alienation experienced by Aboriginal offenders.
It focuses on the individual through close collaboration with family, community service providers and criminal justice agencies.
This partnership approach aims to maximise rehabilitation prospects which benefits the whole community by assisting offenders to comply with the completion of sentencing orders and where appropriate to develop a case management plan designed to meet the needs of the individual offender in a culturally appropriate manner. In this way the Magistrates Court considers and deals with the sentencing of Koori offenders in a more culturally appropriate and aware manner.
How will the Koori Court work?
Rather than being a new Court, the Koori Court is a fundamentally new way of approaching and dealing with Aboriginal offenders. The bill establishes the Koori Court as a new division of the Magistrates Court.
The Koori Court magistrate will be assisted by a Koori Court team consisting of an elder or respected person, an Aboriginal justice worker, a community corrections officer and a police prosecutor and defence lawyer. The Aboriginal community's participation illustrates their willingness to incorporate their principles of what is considered acceptable and not acceptable behaviour. The role of the elder/respected person is an important part of the model. It ensures a cultural context is applied to the court's processes allowing for the Koori Court participants to comprehend the consequences of their offending behaviour from both the law's and the Aboriginal community's perspective.
The Koori Court will generate new and build upon old partnerships between judicial officers, lawyers, law enforcement agencies, correctional authorities, treatment providers and government departments.
These organisations and individuals will need to adopt new roles and embrace a collaborative, team-oriented approach in working together to manage Koori Court participants and reduce their offending.
Another crucial element to this initiative is the development and incorporation in the process of an Aboriginal community code of conduct. Concerns raised by the Aboriginal members of the regional Aboriginal justice advisory committees suggested that there is an underlying perception from offenders that when crime is committed the law which is being broken is the 'mainstream law', which does not form part of Aboriginal culture and community. The code is about reclaiming and redefining 'mainstream law' by developing standards that are owned by the Koori community.
The participation of the elder or respected person symbolises that the offence is not condoned by either the Aboriginal or non-Aboriginal communities and that any sentence imposed is done so after input and information provided to the magistrate by the community representative, the elder or respected person in a transparent fashion in open Court. In this way the sentencing process as well as the sentence ultimately is community owned so when crime is committed it is against community standards. This elder/respected person will play a critical role in the effectiveness and acceptance of the Koori Court initiative.
The Court requires a magistrate to take into account the offender's Aboriginality not simply in determining the sentence to be imposed but in adopting suitable procedures for arriving at that sentence and ensuring that any order imposed is more likely to be complied with given the significant Aboriginal community approval of the sentence as an outcome which is adopted by that community.
It is expected that successful completion of the Koori Court program, with its supervision regime, treatment and support services, will prevent or delay the entry of the offender into prison.
Indication from other similar courts is that the breach rates for offenders and the fail-to-appear rate of offenders are reduced. This translates into the savings in costs of correctional services, savings in prosecution and defence costs and in welfare and unemployment benefit costs. There is also evidence of improved health and wellbeing of offenders. The non-Aboriginal community plainly benefits from these reductions.
What does the Koori Court aim to achieve?
The Koori Court has several operational and community building aims. From a criminal justice perspective, the Koori Court aims to:
* further the ethos of reconciliation by incorporating Aboriginal people in the process and by advancing partnerships developed in the broad consultation process, which has led to this initiative being adopted;
* divert Koori offenders away from imprisonment to reduce their overrepresentation in the prison system;
* reduce the failure to appear rate at Court;
* decrease the rates at which Court orders are breached; and
* deter crime in the community generally.
Similarly, from the community building perspective the Koori Court aims to:
* increase Aboriginal community ownership of the administration of the law;
* increase positive participation in Court orders and the consequent rehabilitative goals for Koori offenders and communities;
* increase accountability of the Koori community families for Koori offenders;
* promote and increase Aboriginal community awareness about community codes of conduct/standards of behaviour and to promote significant and culturally appropriate outcomes; and
* promote and increase community awareness about the Koori Court generally.
To achieve these goals, the Koori Court requires coordination of services together with the input of community resources to help offenders, victims and the community to achieve successful outcomes.
Key features of the bill - I now turn to some of the key aspects of the bill.
Not all Aboriginal offenders will be suitable for the Koori Court. Currently there is no specific target group of offenders except that the offender is adult and Aboriginal and would otherwise be subject to sentences imposed by the Magistrates Court.
Individuals will be eligible to appear in the Koori Court where they plead guilty to offences within the jurisdiction of the Magistrates Court. At this stage, offenders will be excluded where the offence committed is one of crimes family violence or sexual offences [sic] given the complexity of the issues and the services required. Statistics indicate that the most likely offences considered by the Koorti Court will be property offences given that 55 per cent of the Aboriginal people processed in Victoria during 2000-01, committed crimes against property.
It will be vital that Koori Court participants reside in an area in the vicinity of the Koori Court to enable them to be supervised whilst on their order and to allow ease of access as outlined in their order. This will facilitate participants' compliance with the order and therefore reflect a decrease in the number of breaches, one of the clear measurables of the Koori Court pilot's success.
The bill departs from the traditional 'one size fits all' approach to sentencing by giving the Koori Court the ability to tailor programs to address offenders' behaviour and meet their complex individual needs.
The Koori Court's Aboriginal justice worker and the community corrections officer together will develop a case management plan for each participant which might include matters such as drug and alcohol treatment and accommodation, if necessary. The case management plan will assist the Koori Court in determining which program conditions are to be attached to each order determined by the magistrate.
Conclusion
This division of the Magistrates Court has been developed by long and committed consultation with the Koori community, with significant leaders in that community and with people from the grassroots. It reflects the Aboriginal communities' commitment to addressing the underlying issues offenders face and create a greater sense of safety within the community. It provides us with an opportunity to explore ways in which we can reduce Aboriginal exposure to the criminal justice system. As a program of initiatives it provides us as a community with the capacity to make 'imprisonment the sentence of last resort' by incorporating options for rehabilitation which will have a better chance of success. It aims to incorporate the leaders in the Koori community in decision-making processes in a way which demonstrates to Kooris who come before the courts that illegal conduct is unacceptable to the whole community.
It will, as a partnership, sanction this unacceptable conduct, but it will do so in ways which should see offending reduced and greater compliance with court orders.
The effective and appropriate resourcing of the Koori Court is critical to its success. This is acknowledged by this government, and we have committed funds under the Victorian Aboriginal justice agreement for the establishment and operation of the Koori Court and its programs. This funding will not detract from existing programs; rather it is additional in order to absorb the increased demand on existing services.
The Koori Court pilot will be evaluated to determine whether it has been effective in reducing indigenous contact with the criminal justice system, a reduced rate of recidivism is evident and the pilot has ultimately made a difference. If the evaluation is successful the Koori Court could be extended to further locations throughout Victoria.
This bill is the culmination of an extensive period of consultation across the justice portfolio, across government agencies and importantly with the Aboriginal community. I am pleased to say that the community has expressed strong support for a Koori Court and this innovative approach to ensuring the courts' processes are culturally responsive for Aboriginal offenders. I would like to thank those individuals and organisations who responded to the discussion paper and who generously gave up their time for consultation.
This government refuses to turn a blind eye to the underlying issues that prove to be causal factors resulting in the overrepresentation of Aboriginal people in the justice system. It is committed to trying creative and innovative initiatives which look beyond offending behaviour to address its underlying causes. The Koori Court is a bold and exciting initiative to reduce the overrepresentation of indigenous people in our system and its destructive effects on the Victorian community.
I commend the bill to the house.
Debate adjourned on motion of Dr DEAN (Berwick).
Attachment 3
STATEMENT OF DEFENDANT IN COURT
This statement was made by a young Koori man who was before the Koori Court on 45 charges - numerous burglary and related theft, going equipped to steal and driving offences. He also committed offences whilst on parole. He was born on 30th March 1977 in Melbourne. He was sexually abused by an infamous Melbourne priest between the ages of 12 and 15 on a weekly basis. This abuse ceased when the priest went to gaol. The defendant's criminal offending commenced in 1993 and he was first imprisoned in 2001 by the County Court for a serious assault.
"Your Honour, as I look outside my cell window here at MAP I can't help waiting for the people outside to look up, and look in. All people sit in their cars going about their business, not even giving a thought, to wonder, or to look in at us criminals or our surroundings. Your Honour, I don't blame them for not taking notice after all there are some very different sorts of people in here, each with our own problems and crimes. I would agree with them and the rest of society that there is no room for crime in our world. Crime hurts people, it robs people and for some takes away their sense of security which takes a lot, more time to build than it does to walk away with someone's television and for this is the reason I belong here today, tonight and tomorrow. Mr heart goes out to the people I stole from, and to all the people whom are victims of crime and its unpleasant elements that tag along with it. Your Honour, you see I can relate to my victims of crime as compassionately as I can relate to being a victim of crime against myself from Fr. Michael Glennon. I feel sorry for the people I have hurt just as I feel sorry for myself for being hurt too and the hurt it has done to my family. Your Honour, feeling sorry for myself is something I have tried to get rid of long before I made my first statements to the police which took 4 months telling of what I went through as a teenager at the hands of someone I thought cared about me. Nobody will ever know just what I went through! Physical pain and scars go away but what I went through emotionally doesn't go away, through my own experience it has to be put away, and in my own case it has been through trial and error as I am the first to admit. I am not perfect Your Honour, but I have tried to press on and learn to live with my pain, and as time has passed I have learnt a lot. I have learnt that you cant sit around feeling sorry for yourself especially when God has blessed me with a beautiful girlfriend that loves me and supports me, and a princess daughter that needs her daddy to come home and be a good dad. To make sure that what happened to me doesn't happen to her. To see her off to school and to tuck her in at night. Only God knows it Your Honour, learning that being respected in the community, is about working hard and achieving goals, and feeling proud of myself is a feeling I felt when I look back on when and how I was working hard with my roof tyling apprenticeship, and I was achieving goals everyday by going to work everyday for the whole day and finishing the week feeling proud of myself. Amanda my girlfriend was for once very proud of me and so too my mum and Amanda's parents, the people who mean the most to me. Along with them, I too could see my change and the fact that I was working hard up until the trial and completing my parole, to the best of my ability. If I were a train I would say that I swayed from time to time, but my job and my parole were the wheels that were keeping me on track until I left the rails sometime around November, from there on I couldn't recover as heroin was blocking my view.
Your Honour It was about 7:00pm sometime in early September I was sitting at home after work when my phone rang, I answered, and it was the voice of Ralf Tyler (Senior Detective). He had rang to tell me that Glennons trial was nearby and to be on standby to be called in to give evidence but no date was fixed, as that's what trials are like he said. I spoke bravely on the phone, but swallowed a huge lump in my throat as I hung up. A million things went through my mind at once as I tried to digest the sickness I felt in my stomach. From feeling proud and secure one minute, to the next feeling like a weak little boy, feeling scared, very angry and very anxious, feeling sorry came back to, I just couldn't help it.
I went to work the next morning feeling all these feelings as they only intensified. As weeks turned into a month it got worse to the point where it was noticeable that my mind was no longer on my job that I love, and I had to let my boss (Gary) know that I needed time off work for a trial. I had to tell him, what for, as he is the best boss in the world and he deserves my honesty as I knew he would understand, as he did despite my embarrassment!!
Work had only got harder on those roofies at that stage as I could hear and smell heroin whispering at me from every direction. The urge was no longer bearable.
My last day at work in particular, I no longer felt scared, anxious and lost anymore! But it cost me $140 for that feeling and left a prick in my arm. Waiting at home everyday for the trial with 4 weeks off work with an increasing urge to use heroin for comfort my money soon ran out. This is where it all went wrong Your Honour as the evidence is in front of you.
By the time of the trial I was a complete mess. I spent 41/2 days in the witness box being called a liar and ridiculed. I had told Amanda and my mum to stay home to avoid my embarrassment and I didn't want to see them upset on my behalf. They have seen and shared enough pain over the years without knowing the nitty gritty details. Only when I was in the witness box every day did I realise that this was the time I needed mum and Amanda the most. I am humble enough to say that I am happy that I helped get a child molester off the streets for 23 years. What I went through was worth its weight in gold if it means that children are going to be safe and left alone. I just regret that I was very ill prepared as where it has left me and what that does to my family. I am very sorry for them and the people I stole from as a result of how I handled that time in my life. I dug my hole, now I'll lie in it if that what has to happen.
Your Honour, as I drove in the police car to search my home I took them to 7 or 8 addresses that they knew nothing about. On my own accord, I did this because I wanted to fess up with what it had done. I did this because I feel sorry for them people. Although I can't offer them money, as I have none, I could only offer some sort of closure, letting them know that justice will be done as they deserve.
Your Honour, I am at your mercy, and I say that with no malice, I look forward to getting back to my apprenticeship and completing the 3 or 4 months left of my 18 months parole if permitted.
This is no poem from my cell wall to make people feel sorry 4 me. This is my life as I have thought about it everyday for the last 3 weeks as being off heroin has allowed me to do that. Only God knows if I deserve a chance in the community. But I have to say and be honest and say that jail will only put off and prolong mine and my family's pain for another day. I need to intensively address my problems. Do I deserve the chance, I don't' know!
Will jail help me if that what's important, I don't known. I thing I do know is that I am facing my problems like a man, and am obliged to ask for that chance as I owe it to my beautiful girl and my daughter to at least try and ask!
Your Honour, although I am in custody, I do feel free, free as a bird from heroin and the grip it had on my feelings and ambitions of where I want to be in 5 years time and the future from thereon. My mind is now clear. I know that I have to do out there, I know what has to be done, and that is to go back to growing up and being a responsible partner and parent.
Whatever happens today is in Gods Hands.
But my scars will heal and the holes in my arms will stay closed forever.
Because I am important and worth it.
Thank you for listening Your Honour."
Not surprisingly the Presiding Magistrate found the presentation powerful and noted that it would be unlikely that a defendant could or would make a statement at this length after a plea of guilty in the ordinary run of criminal cases. As she said "I think it was important that the judicial system which will ultimately determine a penalty was able to give him a voice". She has also informed me that this defendant has been back in the Koori Court and on this next appearance he apologised for being back in court and said to her and the Respected Elders on the bench "I mean no disrespect to the Elders and I meant what I said in my statement to the Court ... and I will keep trying ." Both the Magistrate and the Elders accepted the sincerity of this last statement.
1 Willis, John; "The Magistracy: The undervalued workhorse of the Court System", Law in Context, Special Issue - Vol. 18, No. 1. p. 129.
2 I have set out the relevant statutory provisions as 'Attachment 1" to this paper.
3 The complete second reading speech is set out at 'Attachment 2' to this paper.
Copyright 2004. Greek Legal and Medical Conference