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Hulls MP, Rob --- "Koori Courts A responsive justice system" [2002] AltLawJl 70; (2002) 27(4) Alternative Law Journal 188

A responsive justice system

THE HON ROB HULLS MP[*] describes the new Koori Courts to be trialled in Victoria by the end of 2002.

It is proposed to establish Koori Courts in Shepparton and Broadmeadows. These are to be piloted over a period of two years commencing at Shepparton by September 2002 and Broadmeadows by late 2002. Subject to the evaluation of the two pilot courts, it is proposed to establish the Koori Court in other key locations.

A person will be eligible to be referred to the Koori Court if their offence is one which falls within the jurisdiction of the Magistrates’ Court of Victoria (with the exception of sexual and family violence offences), the offender is Aboriginal, and the offender consents to being referred to the Koori Court Division.

Ten years on from the release of the Royal Commission’s Report into Aboriginal Deaths in Custody, there remains much to be addressed. While the number of deaths in custody in Victoria has decreased, Aboriginal people remain greatly over-represented in the criminal justice system. For example, Aboriginal people are 11 times more likely to be imprisoned or remanded in custody than non-Aboriginal people. Further, in 2000/2001, Victoria Police processed 4676 Aboriginal people — an increase of 1118 people or 31.4% over five years.

The establishment of the Koori Court seeks to tackle such disproportionate figures by providing a forum in which the Aboriginal community has input into the sentencing process through the role played by an Aboriginal elder/respected person and an Aboriginal Justice Worker. Input by the offender’s community is both a more appropriate and more effective method of decision making than traditional judicial decision making.

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 process are needed to enable Indigenous communities to exercise greater ownership and control over sentencing outcomes.

The Koori Court recognises that offending behaviour is not condoned by either the Indigenous or the non-Indigenous community. Any sentence imposed is done so after input and information is provided to the magistrate by the Indigenous community representative, the elder/respected person.

Concerns raised by Indigenous community members suggest that there is an underlying perception by offenders, that when a crime is committed, the law which is being broken is the ‘mainstream law’, which is not a part of Indigenous community and culture. The Koori Court is about redefining ‘mainstream law’ and making it ‘owned’ by the Indigenous community so when crime is committed it is against both Indigenous and non-Indigenous community standards. It is crucial that Indigenous community members be given a say in the formulation and application of laws that affect them.

The participation of the elder/respected person will enhance the magistrates’ knowledge and understanding in relation to culturally significant factors which may affect the type of sentencing order imposed. The participation of the elder/respected person will play a critical role in the effectiveness and acceptance of the Koori Court initiative.

How will the Koori Court work?

Where an Aboriginal defendant pleads guilty to an offence in the Magistrates’ Court and elects to have their matter heard in the Koori Court, the magistrate, together with the community elder/respected person, will hear the offender’s plea of guilty. This may include hearing from the offender’s legal representative and the offender. Any family members or other people associated with the offence may also be given an opportunity to address the Court. In appropriate circumstances, a victim may also address the Court. These techniques, applied in Indigenous sentencing circles in Canada, have proved successful in reducing recidivism.

The elder/respected person will assist the Court in informing the magistrate about cultural issues. The magistrate may confer with the elder/respected person and discuss the most appropriate sentence or the appropriateness of the conditions placed on a sentence. The magistrate may then ask the Aboriginal Justice Worker about the availability of appropriate services and programs.

The magistrate may sentence the offender immediately or adjourn the matter to allow the Aboriginal Justice Worker, together with the community corrections officer, service providers and family members to work out an appropriate case management plan. For instance, if the magistrate was considering placing the offender on an Intensive Correction Order, the community corrections officer and the Aboriginal Justice Worker could liaise with the offender’s family to see if they were prepared to have the offender reside with them, could approach the local community to see if they would agree to supervise the offender on community work, and could also find suitable services in relation to drug treatment programs and psychological assessment.

The plan would then be provided to the Court where the community corrections officer, in conjunction with the Aboriginal Justice Worker, would outline the proposed sentencing plan to the Court. The magistrate may confer with the elder/respected person in relation to any aspect of the proposed order. However, it is the magistrate who makes the final decision in relation to the sentencing order imposed.

The establishment of the Koori Court is about creating a fair, accessible and understandable justice system. It is about making the justice system more responsive to the needs of Aboriginal people in order to address the discrimination and disadvantage experienced by Indigenous Victorians.

[*] The Hon Rob Hulls MP is the Attorney-General of Victoria.

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