Aboriginal Community Court
Aboriginal Community Court, or Aboriginal court was the name given to the specialised courts dealing with
The proceedings were conducted in the
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
There is an over-representation of Aboriginal people in the
The establishment of the Aboriginal Community Court was a recognition of the benefits of "
History
The
In 1986, the Australian Law Reform Commission 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".[5]
The first Aboriginal Community Court was established in
After an information-gathering exercise that included interviews with court coordinators, magistrates, police prosecutors, 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.[8]
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.
Procedure
The WA model differed from other Indigenous courts established around Australia, such as the
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, and dependent on the presiding judicial officer hearing the case.[2] 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 for example, this is the "circle sentencing" legislation where laws specify how circle sentencing operates in that state.[citation needed]
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.[10] The Law Reform Commission of Western Australia 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.[2]
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.[11] 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.[12]
Constitution of the court
As the court is actually a magistrates court, the court is constituted by a
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.
See also
- Community court
- Community court (Northern Territory)(2005–2012)
- Koori Court, in Victoria (2002–present)
- Murri Court, in Queensland (2002-2012, 2016–present)
- Nunga Court in South Australia (1999–present)
- Youth Koori Court, in New South Wales (2015–present)
References
- ^ a b "Aboriginal Community Court". Department of the Attorney-General (WA). Archived from the original on 29 August 2007.
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: CS1 maint: unfit URL (link) - ^ ISBN 1-74035-053-7. Retrieved 25 July 2022.
- ^ Martin, Wayne (5–7 October 2007). "Customary Law – Western Australia" (PDF). Presented at the Judicial Conference of Australia (JCA) Colloquium in Sydney. Archived from the original (PDF) on 20 July 2008. Retrieved 15 January 2008.
- ^ "Aboriginal Courts in Western Australia". Australian Law Reform Commission. 18 August 2010. Retrieved 24 July 2022.
- ^ "Recognition of Aboriginal Customary Laws". Australian Law Reform Commission. ALRC Report 31. 11 June 1986. Retrieved 24 July 2022.
- ^ a b Martin, Wayne (8 December 2006). "Leadership Western Australia Graduation Dinner [speech]" (PDF). Archived from the original (PDF) on 29 August 2007. Retrieved 15 January 2008.
- ^ a b c "First Nations Specialist Courts" (PDF). Briefing Paper. Law Society of Western Australia. August 2021. Retrieved 24 July 2022.
- ^ a b Aboriginal Legal Service of Western Australia (June 2009). Submission to the WA Attorney-General: Aboriginal Community Courts: Kalgoorlie and Norseman (PDF) (Report). Includes a letter to Christian Porter, then WA Attorney-General. Retrieved 24 July 2022.
- ^ The West Australian (13 August 2015). "Aboriginal court gets the chop". The West Australian. Retrieved 24 July 2022.
- ^ "MP accuses WA Govt of backing Indigenous violence, ABC News, 29 June 2006
- ^ Aboriginal Community Court Archived August 29, 2007, at the Wayback Machine
- ISBN 0-9758213-3-4. Archived from the originalon 16 August 2006.
Sources
- "Chapter Five: Aboriginal Customary Law and the Criminal Justice System", Aboriginal Customary Laws Final Report (2006). Law Reform Commission of Western Australia (Catalogue entry of the whole work)
- "Project Papers on the Review of the criminal and civil justice system in Western Australia: Consultation Papers" (June 1999) Law Reform Commission of Western Australia
- 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, Brisbane.
- Miller, Barbara. "Crime Prevention and Socio-Legal Reform on Aboriginal Communities in Queensland" Aboriginal Law Bulletin, [1991] 18, 1(49) Aboriginal Law Bulletin 10
Further reading
- "Yandeyarra Aboriginal Community Court project". ELaw Journal: Murdoch University Electronic Journal of Law Special Series (1): 141–147. 2006. Retrieved 25 July 2022 – via Indigenous Justice Clearinghouse.