Aboriginal Community Court

The Aboriginal Community Court is the name given to the specialised courts dealing with indigenous offenders in the Australian State of Western Australia. The proceedings are conducted in the Magistrates Court of Western Australia.^[1] The court is not an actual court, but it is the commonly referred to designation of the court when dealing with indigenous offenders accused of crime. This is to show its distinctiveness from the usual procedures involved in that criminal court, but also to demonstrate that the same court structure deals with both indigenous and non-indigenous offenders.

The court allows the involvement of the Australian Aboriginal and Torres Strait Islander communities in the sentencing process. It allows 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 is conducted in a fairly informal manner with the magistrate seated at a table. A major goal of the court is to make sentencing orders that are appropriate to the background and situation of the offender.^[2]

Background

There is an over-representation of Aboriginal people in the criminal justice system in Australia. Aboriginal Australians in Western Australia comprise between 3 and 4% of the general population. However, they comprise more than 42% of the prisoners in custody. Indigenous courts are one method in which the Western Australian government is attempting to remedy this imbalance.^[3] 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.^[4] Another area of indigenous involvement was in the 1970s in the Kimberley region where magistrates informally invited Aboriginal Elders to sit with them when dealing with aboriginal offenders. More recently, magistrates have informally held what was called the “Wiluna Aboriginal Court” in 2001 and also the “Yandeyarra Circle Court” in 2003.^[5] The establishment of the current Aboriginal Community Court is a recognition of the benefits of “circle sentencing”. These were local initiatives by presiding stipendiary magistrates and did not reflect a whole of government approach.

Jurisdiction

The first Aboriginal Community Court was established in Norseman in early 2006. A second court was established in Kalgoorlie in 2006.^[6] The establishment of the court differs from other indigenous courts established around Australia. In Victoria and Queensland, each of those States have established separate and distinct courts to deal with indigenous offenders. Those courts are the Koori Court and the Murri Court respectively. The Aboriginal Community Court is not established as a court in its own right. Instead, the court is actually the Magistrates Court of Western Australia, which is 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 of the District Court of Western Australia. The jurisdiction of the court is therefore the same jurisdiction of a magistrate’s court, and all the appeal and review processes are available to an offender in the usual manner.

Procedure

The court differs 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 has led to criticism of the court in that it is considered that its practices and procedures are ad hoc and are dependent on the presiding judicial officer hearing the case.^[7] This can be seen as a benefit as it provides a degree of flexibility in dealing with individual proceedings. It 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 for example, this is the “circle sentencing” legislation where laws specify how circle sentencing operates in that State. In practice however, these distinctions make little difference to the manner in which each of the courts operates, as each court’s purpose is to reduce the risk of re-offending by indigenous offenders.

A recent criticism of the court is that the court establishes a separate law for indigenous offenders. It is argued this court applies tribal law to indigenous offenders, which may actually justify the person’s criminal conduct.^[8] The Western Australian Law Reform Commission has refuted this criticism. It points out that offenders are sentenced under the same laws as any other offender, and that they are not subject to separate tribal laws.^[9]

Participation in the court is voluntary, and offenders are eligible to participate only if they plead guilty to the offence for which they have been charged. Participation in the program is available for any type of offence, although some family violence and sexual offences are excluded.^[10] In an Australian Law Reform Commission 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.^[11] However, more research is required before any conclusion can be drawn on whether there are actually better outcomes for the criminal justice system or the offender.^[12]

Constitution of the court

As the court is actually a magistrates court, the court is constituted by a magistrate 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 manner.^[13]

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.

Appeals

As the proceedings are actually a case in the Magistrates Court, all the usual appeal processes that apply in that court continue to apply.

Sources

• Project 92 “Review of the criminal and civil justice system in Western Australian” Western Australian Law Reform Commission https://web.archive.org/web/20070829164034/http://www.lrc.justice.wa.gov.au/2publications/reports/ACL/FR/Chapter_5.pdf
• Project 92 “Project Papers on the Review of the criminal and civil justice system in Western Australian” Western Australian Law Reform Commission https://web.archive.org/web/20070829145214/http://www.lrc.justice.wa.gov.au/092-CP.html
• 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, Hennessey Hayes & Kathleen Daly, School of Criminology and Criminal Justice, Griffith University, Brisbane, Queensland https://web.archive.org/web/20070721212436/http://www.griffith.edu.au/school/ccj/kdaly_docs/daly_pt2_paper_3b.pdf and http://www.griffith.edu.au/school/ccj/kdaly_docs/kdaly_paper_17.rtf[]
• Crime Prevention and Socio-Legal Reform on Aboriginal Communities in Queensland by Barbara Miller, Aboriginal Law Bulletin, [1991] AboriginalLB 18, http://www.austlii.edu.au/au/journals/AboriginalLB/1991/18.html[]

References