Aboriginal Community Court, or Aboriginal court was the name given to the specialised courts dealing with

Indigenous Australian Indigenous Australians are people with familial heritage from, or recognised membership of, the various ethnic groups living within the territory of contemporary Australia prior to History of Australia (1788–1850), British colonisation. The ...

offenders in the state of

Western Australia Western Australia (WA) is the westernmost state of Australia. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to the south, the Northern Territory to the north-east, and South Australia to the south-east. Western Aust ...

between 2006 and 2015. The proceedings were conducted in the Magistrates Court of Western Australia.The court was not an actual

court of law A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

, but was the commonly referred to designation of the court when dealing with Indigenous offenders accused of crime, to show its distinctiveness from the usual procedures involved in that criminal court, and to demonstrate that the same court structure deals with both Indigenous and non-Indigenous offenders. The court allowed the involvement of the

Australian Aboriginal Aboriginal Australians are the various indigenous peoples of the Mainland Australia, Australian mainland and many of its islands, excluding the ethnically distinct people of the Torres Strait Islands. Humans first migrated to Australia (co ...

and

Torres Strait Islander Torres Strait Islanders ( ) are the Indigenous Melanesians, Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal Australians, Aboriginal peoples of the res ...

communities in the sentencing process.

Background

The involvement of Indigenous Australians in the criminal court system has been trialled a number of times in Western Australia. The earliest is perhaps in 1930 when the State government established the Court of Native Affairs. This court dealt exclusively with criminal offences between Australian Aboriginal people against other Australian Aboriginal people. The court ceased to operate in 1954 and was criticised for removing important legal rights for Aboriginal defendants. Defendants were dealt with under tribal law rather than the general criminal law, and probably received sentences more severe than if dealt with under the general law. Another area of Indigenous involvement was in the 1970s in

the Kimberley The Kimberley is the northernmost of the nine regions of Western Australia. It is bordered on the west by the Indian Ocean, on the north by the Timor Sea, on the south by the Great Sandy Desert, Great Sandy and Tanami Desert, Tanami deserts in t ...

region where magistrates informally invited Aboriginal elders to sit with them when dealing with Aboriginal offenders. A few decades later, magistrates informally held what was called the "Wiluna Aboriginal Court" at Wiluna, Western Australia in 2001 and also the "Yandeyarra Circle Court" at Yandeyarra Community in 2003. There is an over-representation of Aboriginal people in the

criminal justice system Criminal justice is the delivery of justice to those who have been accused of committing crimes. The criminal justice system is a series of government agencies and institutions. Goals include the rehabilitation of offenders, preventing other ...

, including prisons in Australia. Aboriginal Australians in Western Australia comprised between 3 and 4% of the general population, but more than 42% of prisoners in custody. Indigenous courts are one method in which the Western Australian Government is attempting to remedy this imbalance. The establishment of the Aboriginal Community Court was a recognition of the benefits of "

circle sentencing Indigenous Australians are both convicted of crimes and prisons in Australia, imprisoned at a disproportionately higher rate in Australia, as well as being over-represented as victims of crime. , Aboriginal Australian, Aboriginal and Torres Str ...

". These were local initiatives by presiding

stipendiary magistrate Stipendiary magistrates were magistrates that were paid for their work (they received a stipend). They existed in the judiciaries of the United Kingdom and those of several former British territories, where they sat in the lowest-level criminal ...

s and did not reflect a whole-of-government approach.

History

The '' Aboriginal Communities Act 1979'' (WA) established the system of "Aboriginal courts" in Western Australia, largely through the efforts of Terence Syddall MBE who worked as a

in the north-west. He had introduced the practice of inviting local elders to join him in the courtroom during proceedings involving Aboriginal defendants, and afterwards discussed possible penalties with them. The Western Australian Government asked him in 1977 to conduct an inquiry into Aboriginal law and to create a plan that would help Aboriginal communities in

to understand " whitefella" law. It was intended that any decisions made following the inquiry could, if appropriate, be later introduced in other parts of the state. Following this inquiry and report, the "Aboriginal court" system was established in Western Australia in 1980, on an experimental basis, La Grange (Bidyadanga Aboriginal Community) and One Arm Point. There were varying views by different governments on the effectiveness of these courts. A 1985 study commented on its failure to incorporate local customary laws. In 1986, the

Australian Law Reform Commission The Australian Law Reform Commission (often abbreviated to ALRC) is an Australian independent statutory body established to conduct reviews into the law of Australia. The reviews, also called inquiries or references, are referred to the ALRC by ...

published a report entitled ''Recognition of Aboriginal Customary Laws'', which investigated "whether it would be desirable to apply, either in whole or in part, Aboriginal customary law to Indigenous peoples—generally or in particular areas or to those living in tribal communities only". The first Aboriginal Community Court was established in Norseman, and the second, a pilot, in Kalgoorlie-Boulder in 2006, about year later, both by magistrates Kate Auty and Denis Temby. The pilot was set up with the intention of providing an experience of the sentencing court that is less intimidating to Aboriginal people than the standard system. After an information-gathering exercise that included interviews with court coordinators, magistrates,

police prosecutor In certain jurisdictions, police prosecutors are employed by the police, as counsel for the prosecution, to present cases in court. Without robust safeguards, the lack of prosecutorial independence can result in a prosecuting environment which cre ...

s, staff and panellists from the Victorian Koori Court and Aboriginal Legal Service of Western Australia (ALSWA) staff, ALSWA prepared a submission on the pilot courts in the period November 2008 to May 2009. The report, containing 10 recommendations, was submitted to then Attorney-General of Western Australia, Christian Porter. It supported rolling out more similar courts throughout WA, particularly in remote communities, after consultation with stakeholders, with Warburton suggested as a possible location for the next one. The system was shelved in 2015, along with other WA specialist courts, due to lack of evidence of a reduction in re-offending when compared to the mainstream system. However there had been an overwhelmingly positive response to the courts in 2009 with regard to the positive effect the courts were having on the offenders, increasing their respect for the legal system, as well as improving relations with Indigenous communities.

Recidivism Recidivism (; from 'recurring', derived from 'again' and 'to fall') is the act of a person repeating an undesirable behavior after they have experienced negative consequences of that behavior, or have been trained to Extinction (psycholo ...

rates had improved at Norseman, attributed to the time taken to discuss the background of the offender; more appropriate sentencing options; and the participation of elders and respected persons. The

Law Society of Western Australia Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a Socia ...

supports the establishment of further Aboriginal courts in Australia in general, and the re-introduction of First Nations specialist courts in WA. Aboriginal Legal Service CEO Dennis Eggington said the court "had been set up to fail because of a lack of resources in the community to address the underlying causes of offending", and that Victoria and New South Wales systems worked well because they were properly funded.

Procedure

The WA model differed from other Indigenous courts established around Australia, such as the Koori Court in Victoria and the Murri Court in

Queensland Queensland ( , commonly abbreviated as Qld) is a States and territories of Australia, state in northeastern Australia, and is the second-largest and third-most populous state in Australia. It is bordered by the Northern Territory, South Austr ...

(2002 to 2012), where there were separate and distinct courts to deal with Indigenous offenders. The WA Aboriginal Community Court was not established as a court in its own right; the court was actually the Magistrates Court of Western Australia, the State's main criminal court dealing with summary criminal matters. (Summary criminal matters are generally less serious criminal matters, as serious crime is dealt with by either the

Supreme Court of Western Australia The Supreme Court of Western Australia is the highest state court in the Australian State of Western Australia. It has unlimited jurisdiction within the state in civil matters (although it usually only hears matters involving sums of or more ...

of the District Court of Western Australia.) The jurisdiction of the court was therefore the same jurisdiction of a magistrates court, and all the appeal and review processes were available to an offender in the usual manner. It allowed senior members of the local community to be involved in and express their views upon the particular crime and to be part of the sentencing process. The court was conducted in a fairly informal manner with the magistrate seated at a table. A major goal of the court was to make sentencing orders that are appropriate to the background and situation of the offender. The court differed from other Indigenous courts in Australia in that it does not operate under any specific guidelines other than the existing criminal law that applies to every resident in Western Australia. This led to criticism of the court in that it is considered that its practices and procedures are ''

ad hoc ''Ad hoc'' is a List of Latin phrases, Latin phrase meaning literally for this. In English language, English, it typically signifies a solution designed for a specific purpose, problem, or task rather than a Generalization, generalized solution ...

'', and dependent on the presiding judicial officer hearing the case. This can be seen as a benefit as it provides a degree of flexibility in dealing with individual proceedings, but can however deliver less certainty to the participants in the process, as each case may be treated differently. In other states, similar courts operate under special legislation. In

New South Wales New South Wales (commonly abbreviated as NSW) is a States and territories of Australia, state on the Eastern states of Australia, east coast of :Australia. It borders Queensland to the north, Victoria (state), Victoria to the south, and South ...

for example, this is the "circle sentencing" legislation where laws specify how circle sentencing operates in that state. One myth about the court is that the court established a separate law for Indigenous offenders. It was claimed this court applied tribal law to Indigenous offenders, which may actually justify the person's criminal conduct. The

Law Reform Commission of Western Australia The Law Reform Commission of Western Australia is a commission to investigate, review and advise on the reform of the law in Western Australia, a state of Australia. The present commission came into existence on 31 October 1972. History There h ...

refuted this criticism, pointing out that offenders were sentenced under the same laws as any other offender, and that they are not subject to separate tribal laws. Participation in the court was voluntary, and offenders were eligible to participate only if they plead guilty to the offence for which they have been charged. Participation in the program was available for any type of offence, although some family violence and sexual offences were excluded. In an

report, it was noted that participants in these types of courts report higher levels of satisfaction with the criminal justice system than the usual British based legal proceedings.

Constitution of the court

As the court is actually a magistrates court, the court is constituted by a

magistrate The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judi ...

and not by the Aboriginal community. There is a pool of six Aboriginal elders who are available to sit with the court. The magistrate presides, facilitates, and ultimately determines the appropriate sentence for the offender. The elder's role is to provide the court with information on the background of the offender, point out the aspects of the offence as they relate to the offender, the impacts they have on the community and the effect it has had on the victim of the crime. The elder may also explain the proceedings to the offender in a

culturally sensitive Cultural sensitivity, also referred to as cross-cultural sensitivity or cultural awareness, is the knowledge, awareness, and acceptance of other cultures and others' cultural identities. It is related to cultural competence (the skills needed fo ...

manner. The prosecutor continues to present the facts of the case and makes submissions as necessary on the crime. The offender participates in the process by agreeing to adhere to the community process involved. Lastly, the victim is encouraged to be part of the process and to outline the impact of the crime upon them. However, it is not compulsory for the victim to be involved if they do not wish to. As the proceedings are actually a case in the Magistrates Court, all the usual appeal processes that apply in that court continue to apply.

References

Sources

"Chapter Five: Aboriginal Customary Law and the Criminal Justice System"
''Aboriginal Customary Laws Final Report'' (2006).

Catalogue entry of the whole work

(June 1999)

* Marchetti and Daly (2004), 'Indigenous courts and justice practices in Australia', ''Trends & Issues in Crime and Criminal Justice'', No. 277.
Youth Justice Conferencing and Re-Offending
(July 2005). Hennessey Hayes & Kathleen Daly, School of Criminology and Criminal Justice,

Griffith University Griffith University is a public university, public research university in South East Queensland on the Eastern states of Australia, east coast of Australia. The university was founded in 1971, but was not officially opened until 1975. Griffith ...

, Brisbane. * Miller, Barbara
"Crime Prevention and Socio-Legal Reform on Aboriginal Communities in Queensland"
'' Aboriginal Law Bulletin'',

991 Year 991 (Roman numerals, CMXCI) was a common year starting on Thursday of the Julian calendar. Events * March 1: In Rouen, Pope John XV ratifies the first Peace and Truce of God, Truce of God, between Æthelred the Unready and Richard I o ...

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