This article was published on The Australian on 9/6/17
Around 30 years ago I worked as a lawyer for the Aboriginal Legal Service in northwest Queensland. One day I was sitting in on a Coroner’s Court matter in Mt Isa, waiting for my case to be called, when an old Aboriginal man took the stand as a witness to a fatal vehicle collision.
After being sworn in to give evidence about something in which he had no direct involvement, however, this man looked slowly around at the sea of white faces and said simply: “I plead guilty.”
Many in the court sniggered, but I was ashamed a system that professed to administer justice could so clearly be viewed by this innocent man as a system that assumed he was guilty of something — a place where the quickest way to leave the stand was to submit to this assumption.
What I saw was a reflection of the over-criminalisation of Australia’s indigenous population. I also saw that this so-called justice system did not represent justice — or even accountability — to the people it was scrambling to lock up.
Justice mechanisms that do not allow people to experience justice lose their meaning. Equally, justice mechanisms that do not allow people to feel accountable for their actions — instead making them feel punished for who they are — do not carry any real authority.
These simple assertions draw on a substantial body of evidence about procedural justice that demonstrates the value of legal processes in which participants feel heard and respected.
This evidence also shows that a judicial officer who treats an accused with respect and recognises them as an individual carries more authority in the accused’s mind. This makes the accused more willing to comply with any orders imposed and less likely to commit further crime.
It’s common sense, and I was determined to bring it to Victoria during my time as attorney-general, establishing a network of Koori Courts in partnership with the state’s indigenous communities.
The principle of these courts was simple, being the participation of the accused and surrounding community in less formal, more meaningful processes; and the involvement of elders and respected persons to lend cultural weight to the court’s authority.
So it was with great interest that I read in this newspaper that the NSW Bar Association has unveiled a proposal to establish an indigenous court along similar lines.
Certainly, the evidence from Victoria’s experience is unequivocal. More than 10 years on from their establishment, Koori Courts are making a difference to the lives of all who come into contact with them, whether they be offenders, victims, judicial officers, support workers or the elders and respected persons of the local Aboriginal communities who sit in the court.
This network has now expanded from Magistrates’ Court locations to the Children’s and County jurisdictions and evaluations of all demonstrate that recidivism for offenders who go through these courts is substantially reduced.
Recidivism, however, is not the only measure of success. A partnership between courts and local communities, this jurisdiction enables Aboriginal Victorians to develop a sense of ownership and investment in the justice system. This means better outcomes for victims, as offenders become more accountable. What’s more, the judiciary and associated professions develop a greater level of cultural awareness; while Koori elders become powerful advocates on behalf of their communities.
They may have seemed like an “experiment” to some at the time — the editor of this Legal Affairs section included, and I welcome his mea culpa now that “the experiment has worked”.
I also welcome the recognition from this paper and from the NSW Bar Association that — in the face of ever increasing indigenous incarceration rates — we cannot keep doing the same thing and expecting different results.
We must get better at giving our justice system meaning, at leveraging its authority in more effective ways. The Koori Court approach shows there is no greater authority — and therefore no greater sense of accountability — than culture and community.
In fact, offenders report that going before a judge who is advised by elders and respected persons from their own community is far more confronting than the feeling of being yet another anonymous blackfella, presumed guilty.
That old Aboriginal man in Mt Isa held a mirror to the system in which I tirelessly toiled each day and showed me in three simple words that he did not experience justice in the same way I did.
Koori Courts and the proposed Walama Court in NSW are simply about starting to balance the scales.