The Koori Court and Changing Racial Narratives

By Ellen Hays
Two Nations

When I observed the Broadmeadows Koori Court for a law school assignment, I did not expect to be brought to tears of emotion by a traffic offence hearing.

As I entered the Koori Court, the first thing I noticed was that the structure and décor was different to the mainstream court. Aboriginal art donned the walls and there was a group of people sitting around a table in the middle of the room. The magistrate, the prosecuting constable, Aboriginal Elders (who were referred to as Auntie and Uncle) and officers of the Court were seated around this table, along with the offender and his legal representation. The magistrate was sitting level with everybody else around the oval table as a symbol of equality. After the prosecution read out the offence, the group discussed the offender’s past crimes and his troubled childhood. They also considered his efforts to find work and a permanent address. When Auntie and Uncle addressed the offender, their sincerity and empathy was clear as they expressed emotional connection with how difficult it can be for young people, like the offender, who had struggled with homelessness and drug addiction. They made sure he knew that he was cared for within the Aboriginal community and not alone in his struggles.

The offender was encouraged to speak throughout this process. Legalistic jargon and formalities were put aside and he was welcome to ask questions and engage with everyone around the table. Meaningful communication was evident as the group listened to him attentively. This enabled him to open up about his desire to “make something” of himself and end his involvement in crime. The magistrate asked him questions about his hobbies and they discussed strategies to prevent him reoffending such as joining a football team, which would help him build a support network outside of criminal activity. The magistrate listened to the offender when he requested a sentence that did not hinder his progress in his employment and housing situations. The advice of the elders enabled the magistrate to deliver a culturally appropriate sentence that fit the crime and took the offender’s circumstances into account.

This reflects the aims of the Koori Court in giving Aboriginal offenders a voice and promoting rehabilitation. The offender was clearly emotionally affected in a positive way by the hearing, especially by his interactions with the Elders. The Koori Court made an experience that could have been negative, intimidating and alienating in the mainstream court, become one that was inclusive, therapeutic and rehabilitative. This was absolutely heart-warming to observe.

The Koori Courts were formed as part of the Victorian Aboriginal Justice Agreement (VAJA). This agreement was a response to the Royal Commission into Aboriginal Deaths in Custody, which found that the high number of Indigenous deaths in custody was related to Indigenous people’s over-representation in the criminal justice system. The report recommended reforms that make the justice system less alienating and intimidating for Koori offenders. The Koori Courts have played a key role in this. They aim to encourage greater participation of the Aboriginal community in the sentencing process, achieve culturally appropriate sentences for Aboriginal people and address underlying causes of criminal behaviour. Striving for these aims has had positive effects on reoffending rates. One study found that the Shepparton Koori Court had a recidivism rate of 12.5 per cent during the two years of the pilot program, and the Broadmeadow Koori Court reoffending rate was 15.5 per cent. Compared to the general average of 29.41 per cent, this is a significant reduction that attests to the success of the Koori Courts.

“The Koori Courts are not a double standard,

they simply recognise that Aboriginal offenders have a different historical relationship to the system.”

Despite their success, the Koori Courts have been criticised for seeming to be a double standard of justice. Some have described the courts as “apartheid justice” and blamed them for promoting social division. On the face of it, it does seem that having one court for a particular racial group and a different one for another would undermine values of equality before the law.

However, this criticism fails to recognise the unique historical relationship between Aboriginal people and the justice system. This system was imposed on their ancestors when Australia was colonised by people who not only dispossessed Aboriginal people of their land, but also caused many Aboriginal deaths by bringing foreign diseases and directly trying to kill them off. Once the system was in place, it deprived Aboriginals of citizenship, voting rights and the right to own land. The legal system implemented the terrible policies that resulted in the Stolen Generation. It took many years before the system even recognised Aboriginal people as human, rather than simply “flora and fauna” as the law considered them to be until the 1967 referendum. These years of discrimination and mistreatment of Aboriginal people by the justice system have inevitably resulted in Aboriginal distrust and disengagement with the system. This has created a need to give Aboriginal offenders their voice back in the legal system.

The Koori Courts are not a double standard, they simply recognise that Aboriginal offenders have a different historical relationship to the system, and this means that their needs that cannot be successfully addressed by the mainstream court.

A further criticism of the Koori Court is that it is a “soft option” compared to the mainstream courts. This is incorrect in terms of sentencing because the magistrate still maintains complete authority and control over the sentence. The court is still bound by the statutes and precedents that it must follow in the mainstream court. Some may argue that it is a “soft option” because of its focus on promoting wellbeing and rehabilitation.

However, studies have found that this is not the case, largely because offenders often find it very difficult to be held to account for their actions by the respected Elders of their own community. This has been found to have a greater impact on Aboriginal offenders than facing the alienating and intimidating mainstream system. The Elders are able to explain to offenders that their crime is not only an offence against the law, but also an offence against Aboriginal values such as respect for country and for community. Being shamed for one’s actions by the Elders tends to cause an emotional response that would not be possible in the sterile environment of the mainstream court.

An offender, cited in a report by Bridget McAsey, described it in the following way: “In the Koori Court like you feel like the size of an ant. When they talk to you, you do, you start getting a lump in your throat, you feel like crying.” Facing the mainstream court does not carry as heavy a meaning that shaming from the Elders does for Aboriginal offenders, which means that the Koori Courts are much tougher to face.

The Koori Courts do not promote inequality, nor are they a soft option. It is also possible that there are aspects of the Koori Courts that may be beneficial for non-Aboriginal offenders. Creating a less intimidating environment and reducing legalistic formalities and language have helped Aboriginal offenders to have a voice in the justice system and there does not appear to be a reason why non-Aboriginal offenders would not also benefit from this. To only offer this to Aboriginal offenders could arguably be considered discriminatory, but this simply shows that the mainstream court could learn from the success of the Koori Court, not that the Koori Courts are inherently unfair.

Rather, the Koori Courts are a mechanism for achieving justice and rehabilitative healing in the cases that come before it, and, more broadly, in the narrative of race relations in Australia.

Ellen Hays is an Arts (Politics)/Law student at Monash University.

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