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Koori Courts help reduce Indigenous incarceration: ICJV

Koori Courts help reduce Indigenous incarceration: ICJV

By Karin Derkley

Courts Criminal Procedure Discrimination 


Victoria's ground-breaking Koori Courts have been held up by the International Commission of Jurists Victoria (ICJV) as the model other Australian states and territories should adopt to address "unacceptably high" Indigenous incarceration.

ICJV vice chair Campbell Thomas says Koori Courts reduce recidivism by involving the Indigenous community in sentencing and addressing the reasons behind an individual’s offence. “If you can decrease recidivism, you decrease incarceration – and that's the key.”

Indigenous offenders benefit from their involvement with Koori Courts even if the process of standing before Koori Court elders can be confronting, he says.

“In the Koori Court, you have elders from the community involved in the process alongside the judge or magistrate, questioning the offender, shaming them and making sure they take part in services that are run by Aboriginal people.

“Involving the offender and their family and elders is much more likely to control someone's behaviour than a ‘whitefella’ court, which just pronounces judgment from the bench without including the offender or his family in the process,” he says.

While other states such as NSW also have Koori style courts, Mr Thomas says the system in Victoria is the best in Australia and should be adopted by Western Australian, Northern Territory and Queensland, which currently lack such courts.

The ICJV's proposal follows Australian protests about the treatment of Indigenous people within the Australian criminal justice system. The over-representation of Indigenous people in custody remains unacceptably high, the ICJV says, two years after its report to the Australian Law Reform Commission’s Inquiry into Indigenous Incarceration Rates, and nearly 30 years after the Royal Commission into Aboriginal Deaths in Custody.

Canada’s approach to sentencing Indigenous people was also recommended by the ICJV as a way of reducing Indigenous incarceration and deaths in custody.

ICJV executive committee member Felicity Gerry QC says Victorian should bring in what are known in Canada as Gladue reports, which provide the court with background factors that may have played a part in bringing the particular offender before the court and the types of sentencing procedures and sanctions that may be appropriate given the offender’s heritage or connection.

“They are very effective and contribute to a better way of doing justice for Indigenous people,” Ms Gerry says. “It’s a good way of engaging everybody, particularly the Indigenous community, in the legal process.”

Victorian Aboriginal Legal Services is running a pilot on similar reports known as Aboriginal Community Justice Reports. The aim of the project is to improve sentencing processes and outcomes for Aboriginal and Torres Strait Islander defendants by providing courts with information about the personal and community circumstances of Aboriginal individuals before the courts, and provide relevant sentencing options that are accompanied by appropriate supports.

“It's arguable that it can be more successful in Australia because we can build on the Canadian experience,” Ms Gerry says. “If the pilot here works, hopefully the government will bring in a law that makes it mandatory to involve the Indigenous community.”

The ICJV also urges more investment in early intervention, prevention and diversion strategies and education of police to combat specific forms of discrimination against Indigenous peoples. “It's only by social reform that you're going to lessen people's involvement with the criminal justice system in the first place,” says Mr Thomas. “A much more important part is what happens in the community to prevent offending in the first place, and to prevent reoffending once someone's involved in the criminal justice system.”

But Mr Thomas also pointed to the problem of  theincreased focus on law and order policies in recent years that has led to an increase of 70 per cent in the rate of Indigenous incarceration. “That’s because of increasing penalties, mandatory prison sentences and regimes that make it much more difficult to get bail.

“All those processes disproportionately affect Indigenous people who are monitored and arrested more often than non-Indigenous people and are much more liable to be spending more time in jail.

“It's the law and order policies of governments that have led to the more recent increases in incarceration and the more recent increases in Indigenous deaths in custody as a result.”

Photo: Opening of Mildura Koori Court in August 2016 (David Johns)

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