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Bryant, Gerard --- "Koori Court, Shepparton Victoria" [2008] IndigLawB 30; (2008) 7(7) Indigenous Law Bulletin 19

Koori Court, Shepparton Victoria

By Magistrate Gerard Bryant[1]

The plight of Indigenous Australians has been well documented and publicised recently, bringing into sharp focus the dire circumstances in which many Indigenous people live.

It is clear that something needs to be done to arrest the continued decline in many Indigenous communities. It is an inalienable right of every Australian to exist in an environment that is safe for us and our children to live in and work.

Reducing high crime rates in many Indigenous communities and over representation of Indigenous people in our prisons poses a significant challenge for reform.

The question confronting those seeking to bring about meaningful outcomes and change in the criminal justice system is to recognise that one-size does not fit all.

Indigenous communities are not monocultural and what may work for one community may not work for another. What works for the Koori community in Shepparton Victoria may not necessarily work for the Yolgnu people of North East Arnhem Land in the Northern Territory.

There is no substitute for local knowledge and consultation with those who are going to be affected by proposed changes. This applies not only to any program designed to bring about social change in Indigenous communities but also to the creation of specialist courts for Indigenous people.

The Koori Court, which was created in 2002 in Victoria, is one such initiative.

It is only when Indigenous people feel that they have ownership over the processes and structure of a Court developed for their community that respect for the law as a universally recognised standard of behaviour can be achieved.

Problems in Indigenous Communities

Causes of Indigenous disadvantage are many and complex. The current plight of Indigenous Australians cannot be properly understood without appreciating the pervasive impact that non-Indigenous culture has had on Indigenous communities.

Many of the problems confronting Indigenous people are not unique to their communities. Poverty, drug and alcohol abuse, chronic under employment, child neglect and high rates of violence are symptomatic of the level of dysfunction that exists in many lower socio economic and migrant communities across Australia.

The difference is the level of concentration of many of these indicators in the one community, and the subsequent over representation of Indigenous people in our criminal justice system.

Statistics from the report Overcoming Indigenous Disadvantage Key Indicators 2007 reveal that Indigenous Australians are 13 times more likely than non-Indigenous Australians to be incarcerated in an adult prison.[2] In Victoria, at 30 June 2006 Indigenous people made up 0.6 per cent of the population[3] and yet made up 6.0 per cent of the prison population.[4]

Traditional thinking has always been that the criminal justice system has been a blunt instrument to bring about social change and, more importantly, change in many of the individuals that appear before the Courts.

The threat of prison for those who live their lives in despair, bereft of hope for the future, simply does not have the same resonance that it has for many other Australians.

That it is not to suggest that Indigenous people value their freedom any less than the rest of Australia, but that the spectre of the prison door is not always a deterrent when people’s lives are mired in hopelessness and a pervasive sense of disempowerment.

Recognising That More Of The Same Will Not Change Outcomes

It is clear that, across Australia, Indigenous people are disproportionately over represented in our prisons. Building more prisons, sentencing more people to imprisonment, does not always translate to safer communities.

Not only is there the significant economic cost involved in incarcerating people, but there is also the social and emotional cost of over representation. Primarily for those individuals who are lost for lengthy periods of time, but also in the disruptive effect it has on children and extended family. The wider community is left to deal with the trauma of having a child or parent absent for long periods.

It is important to recognise in considering any initiatives to reduce over representation of Indigenous people in prisons that there are some offences that are so serious that they warrant imprisonment, and some offenders are simply unwilling or unable to change their ways. Any initiative must be targeted and thoroughly researched in order to have any chance of success.

In my experience, Indigenous offenders may appear bored, indifferent, or simply disengaged from the process when being sentenced in the traditional justice system. The reasons for this are varied and complex, but at its heart it is that the process lacks meaning for them.

Many people who have worked with Indigenous people have known for a long time that Aboriginal people are alienated and disempowered by the traditional justice system.

Dealing With the Causes not the Symptoms

In jurisdictions such as the Children’s Court and the specialist Drug Court, there has long been a recognition that it is simplistic and shallow to deal with offenders’ criminal behaviour in isolation from the underlying factors that may have contributed to the offending.

The same therapeutic problem-solving model applied in many of these courts is capable of more universal application.

It has become almost routine in dealing with repeat offending behaviour in Juveniles to request a pre-sentence report, or psychological report designed to elicit some of the potential reasons why a young person may have offended.

What is often critical in this approach is the role of the family as a source of support to the young offender. Family background is accorded a prominent place in criminologists’ explanations for juvenile crime.

Support from the family is critical to transforming behaviour. This can take the form of encouragement to do better, and not repeat such behaviour, but also to admonish and shame an offender, by reinforcing the fact that such behaviour is contrary to the family’s values and norms

John Braithwaite has labelled this form of interaction as ‘reintegrative shaming.’ As he observed:

The best place to see reintergrative shaming at work is in loving families…Family life teaches us that shaming and punishment are possible while maintaining bonds of respect…[F]amilies are the most effective agents of social control in most societies because of this characteristic.[5]

But what if the family unit does not exist? What if the family lacks the leadership often provided by one or both parents? What if normative societal values have been contaminated and corrupted by the influence of drugs, alcohol, inter-generational conflict and violence?

Where does the moral leadership come from in this context? Are the police and the courts able to take on this role in a meaningful way? The break down of moral authority and the absence of anything to take its place is reflected in the problems facing Indigenous communities in many parts of Australia.

The problem with permitting the police and the Courts to take the lead on moral leadership in Indigenous communities is that transferring ownership of a conflict from those involved to third parties necessarily disempowers people.

How does the criminal justice system prevent offenders from morally disengaging from their actions?

What Is the Koori Court?

The Koori Court is an alternative way of administering sentences. It provides a forum in which the Court processes are culturally relevant and accessible to Indigenous people. The Court still preserves the Magistrate as solely responsible for sentencing, but the process is consultative and participatory. Elders and Respected Persons play a pre-eminent role in the Court.[6]

The Koori Court ensures a cultural context is applied to the Court’s processes, allowing the participants to understand the consequences of their behaviour, both from the perspective of the law and the Indigenous community.[7]

Elders And Respected Persons

Elders and Respected Persons, in the absence of the victim, provide the necessary moral authority to ‘humanise’ the consequences of the defendant’s criminal behaviour.

By encouraging offenders to confront the moral and emotional dimensions of their offending, they help offenders move beyond an abstract notion of the ‘victim’ to understand that their offending has consequences for a real person. The human element cannot be underestimated.

Questions frequently asked by Elders, such as ‘what would you think if the victim was your sister or brother?’ have an immediate and confronting effect on many offenders. Importantly the Elders carry with them a moral authority that cannot be matched by a Magistrate. Their authority comes from the status afforded them by their community as Elders or Respected Persons.

In many communities, this type of authority comes free from the stigma attached to the perceived instruments of oppression, represented by the police and the courts. It often resonates with the offender because, although the message may be the same, the source commands a different type of respect.

Knowledge of offenders or their background can be invaluable in engaging with them to appreciate the consequences of their offence. Equally, such knowledge is key to communicating that, despite the offence, offenders are capable of rising above their problems.

For many Indigenous people, the concept of family and community is much broader than non-Indigenous people perceive. Comments from a Respected Person can carry all the moral authority of someone from the immediate family.

The participation by an Elder or Respected Person in reinforcing that the offender’s behaviour is not condoned by either Indigenous or non-Indigenous communities, is about reclaiming and redefining ‘mainstream law’ by developing standards that are owned by the Koori community.[8]

The input to the Magistrate by the Elder or Respected Person in open Court contributes to a strong sense of community ownership of the sentencing process. The result is that the crime is seen as not only a crime against mainstream law but also against contemporary Indigenous community standards.

The Role of Culturally Appropriate Service Providers

Words are cheap; no amount of heartfelt sermons from Magistrates is going to reverse the impact of grinding poverty, abuse, neglect and long term substance abuse on many Indigenous offenders.

Breaking the cycle of offending can only be achieved when an offender expresses a willingness to acknowledge his or her wrongdoing, and to actively do something to transform his or her life. The role of the Elders and Respected Persons in bringing an offender to this point of enlightenment is an important first step.

The question remains, how do we harness this new found desire for change and transform it into action? As experience has shown, simply putting offenders on a Community Based Order (‘CBO’), without making a realistic appraisal of their capacity to engage and complete such an order, is often a pointless exercise.

The Koori Court, over time, has engaged the services of a number of agencies to assist defendants appearing before it. The agencies include drug and alcohol workers, mental health workers, housing and employment officers, correctional workers and, in more recent times, representatives from women’s and men’s mentoring programs.

The ability during a proceeding to isolate a cause of offending, and say to the defendant, ‘look behind you there is a drug and alcohol worker from your community who wants to help you now’is a key factor in the process of transformation.

To create courts for Indigenous people without this service infrastructure is to doom them to failure from the start. The political will to address the causes of Indigenous over representation will not be achieved by token window dressing.

Response To Criticisms Of The Koori Court

Critics of the Koori Court have suggested that is a waste of money, a soft option for offenders and that it offends the principle of equality before the law.

The argument that the Koori Court is a waste of money is made on the premise that it would be more effective for Indigenous communities to direct greater resources to more police and child protection workers than a specialist court.[9]

Such a criticism poses a dichotomy of choice for Indigenous communities. It is disingenuous because it precludes a scenario where the benefits of a culturally relevant Court could coexist with the advantages of additional police and child protection workers.

Some have depicted the Koori Court as a soft option that dispenses unequal justice, despite the power of the Court to impose all the same sentencing options of a mainstream Court, including the imposition of terms of imprisonment.

The Court’s approach, with the assistance of the Elders and Respected Persons, is to identify the cause of the criminal behaviour, an often confronting process for the offender. The Court then tailors a sentence that will be meaningful to the offender and best achieves the universal sentencing objectives of rehabilitation, deterrence and the protection of the community.[10]

It is not soft sentencing but smart sentencing.

The belief that the Koori Court offends the principle of equality before the law suggests that any innovation within the criminal justice system is not justified unless it is applied universally. The reality is that we are not all equal and to treat everyone as equal in this context simply serves to compound inequality.

Aboriginal people are grossly over represented in our jail population. The continued application of the one-size fits all approach to justice will only increase these figures.

It is important not to confuse innovation with notions of inequality. An evaluation of the Koori Courts in Shepparton and Broadmeadows in 2005 found that the recidivism rates achieved were reduced to half that of the general population. This is an example of achieving equality in outcomes through innovation.[11]

Conclusion

The traditional processes of the court exercising its criminal jurisdiction are in some respects centuries old. These processes today serve only to intimidate and alienate many Indigenous people.

The mainstream processes of sentencing offenders can afford defendants the anonymity of not having to acknowledge their victim, having to confront the human consequences of their behaviour, or be subject to family or community disapproval. Such a process encourages the offender to morally disengage from the offence.

It will not always be possible or even desirable to have victims present in a Court. The victim’s voice however can be just as powerful when it is echoed and validated by a person respected by the offender.

The role of the Elder or Respected Person in shaming and encouraging offenders is a pivotal aspect of the Koori Court. By reinforcing universal standards of behaviour, the offending ceases to be seen in the abstract. It is properly viewed as contrary to the standards of behaviour expected in both Indigenous and non-Indigenous society.

The Koori Court is a problem solving court that is about making an offender accountable for their offending, and providing the means by which they can transform with the support of a multi-disciplinary team of service providers.

Recognising that some offenders simply do not know how to help themselves, and that others may be resistant to change, means that assistance needs to be immediate and tangible.

The process is resource and time intensive and change is often gradual; but the rewards for the individual and their community are priceless. Rebuilding communities by transforming the individual provides hope that normative societal values and standards can be instilled and passed on to the next generation.

Only then can we begin to make any meaningful inroads into the myriad of causes that has contributed to the cycle of over representation of Indigenous offenders in our jails.

Magistrate Bryant sits in the Koori Court in Shepparton, Victoria.


[1] This paper was supported by the work of Natalie Plumstead, Research Officer, Magistrate’s Court of Victoria.

[2] Commonwealth of Australia, Overcoming Indigenous Disadvantage Key Indicators 2007 (2007) 23.

[3] Australian Bureau of Statistics 4705.0 Population Distribution, Aboriginal and Torres Strait Islander Australians 2006 <http://www.abs.gov.au/ausstats/abs@.nsf/b06660592430724fca2568b5007b8619/14e7a4a075d53a6cca2569450007e46c!OpenDocument at 22 May 2008> .

[4] Australian Bureau of Statistics 4517.0 Prisoners in Australia, 2006 <http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4517.0Main+Features12006?OpenDocument at 22 May 2008> .

[5] John Braithwaite, Crime, Shame and Reintegration (1st ed, 1989) 56.

[6] Ian Gray, Chief Magistrate of Victoria ‘The Victorian Koori Court. Therapeutic Jurisprudence At A New Coalface’ The Greek Conference, Crete, 25 May 2004, 2.

[7] Victoria, Parliamentary Debates, Assembly, 24 April 2002, 1130 (Rob Hulls MP).

[8] Hulls, above n7, 1130.

[9] Peter Faris, ‘Kooris’ Court A Waste Of Money’ The Australian (Sydney), 9 May 2008, <http://www.theaustralian.news.com.au/story/0,25197,23666993-5013172,00.html> at 21 May 2008.

[10] See the sentencing objectives contained in the Sentencing Act 1991 (Vic) s 1.

[11] Dr Mark Harris, ‘A Sentencing Conversation’ Evaluation of the Koori Courts Pilot Program October 2002 – October 2004, LaTrobe Law LaTrobe University, March 2006, 85.