Specialist courts and diversion programs

11.18  Criminal offences are divided into two categories: summary and indictable offences. Summary offences are heard in the lower courts (Local or Magistrates courts), whereas indictable offences are generally heard in District/County or Supreme courts. These courts are referred to as ‘mainstream’ courts, and hear the majority of criminal cases prosecuted in all Australian jurisdictions.

11.19  For Aboriginal and Torres Strait Islander peoples, mainstream courts can be inaccessible or alienating. This affects access to justice, and can result in some of the principles underpinning criminal justice—including deterrence, punishment and rehabilitation—having a lesser impact on Aboriginal and Torres Strait Islander defendants.

11.20  Specialist courts, which provide different approaches to sentencing Aboriginal and Torres Strait Islander offenders, have been developed in response. These specialised sentencing courts aim to be inclusive and culturally appropriate.

11.21  Diversion programs, which divert a defendant or offender out of the criminal justice stream in order to address criminogenic behaviours prior to trial or sentencing, can also assist some Aboriginal and Torres Strait Islander people who come before the courts.

Question 11–1           What reforms to laws and legal frameworks are required to strengthen diversionary options and specialist sentencing courts for Aboriginal and Torres Strait Islander peoples?

Aboriginal and Torres Strait Islander sentencing courts

11.22  As noted above, the operation and processes of mainstream courts can cause engagement difficulties for Aboriginal and Torres Strait Islander peoples. While discussing the establishment of the Nunga Court, an Aboriginal and Torres Strait Islander sentencing court operating in SA, the Office of Crime Statistics and Research (SA) described the alienation and disconnection of Aboriginal and Torres Strait Islander defendants:

The overwhelming view that emerged ... was that Aboriginal people mistrusted the justice system, including the courts. They felt that they had limited input into the judicial process generally and sentencing deliberations specifically. They also saw the courts as culturally alienating, isolating and unwelcoming to community and family groups. It was clear that Aboriginal people found aspects of the Australian legal system difficult to understand …[19]

11.23  Stakeholders in this Inquiry have described how Aboriginal and Torres Strait Islander defendants have left court without a real understanding of their rights and obligations in relation to the outcome of the matter. Aboriginal and Torres Strait Islander sentencing courts have been developed to respond to this disconnection. Such courts seek to directly engage people who appear before them, to provide case management, and to address underlying issues in culturally appropriate ways,[20] including having Elders participate in the sentencing discussion.[21]

11.24  Aboriginal and Torres Strait Islander sentencing courts exist in NSW, Queensland, SA and Victoria. A brief overview of these courts is set out below.

Victorian Koori Courts

11.25  The Victorian Koori Courts operate in the Children’s, Magistrates’ and County Courts. Each of the courts was created under statute.[22] Generally, Koori Courts provide an ‘informal atmosphere’ and allow ‘greater participation by the Aboriginal (Koori) community in the court process’.[23] The Victorian Koori Courts allow for Elders, Aboriginal and Torres Strait Islander family members, and a ‘Koori Court Officer’ to engage and influence court processes during a hearing.[24] Victorian Koori Courts focus on reducing cultural alienation and ensuring appropriate sentencing outcomes that are developed with a high level of community support.[25] These courts are more informal than mainstream courts and have a ‘plain-language’ focus. They do not use a traditional courtroom layout.

11.26  The Victorian County Koori Court is the first (and only) sentencing court for Aboriginal and Torres Strait Islander offenders in an indictable jurisdiction in Australia.[26] A 2011 evaluation of the Court found it to be ‘more engaging, inclusive and less intimidating than the mainstream court’.[27] This was even the case where the offender did not agree with the sentence imposed by the Court.[28]

NSW Circle Sentencing

11.27  Circle Sentencing is an alternative sentencing process available in parts of NSW for Aboriginal and Torres Strait Islander offenders who have entered a plea of guilty in the summary jurisdiction. Circle Sentencing was created under statute and operates in a similar way to Victorian Koori Courts, although Circle Sentencing is only available for some summary offences.[29]

11.28  NSW Circle Sentencing was evaluated in 2008 by NSW BOCSAR, which found ‘no significant difference between circle sentencing participants and the control group in time to reoffend’ and further found no difference in the seriousness of reoffending between participants and the control group.[30] However, the same study suggested that Circle Sentencing may strengthen ‘informal social controls’ in Aboriginal and Torres Strait Islander communities through participation of community members,[31] with other reviews of Circle Sentencing finding that participants may be more active and involved in Circle Sentencing than in mainstream courts.[32]

Queensland Murri Courts

11.29  Like other Aboriginal and Torres Strait Islander sentencing courts, Queensland Murri Courts are less formal than mainstream courts, and aim to be more culturally responsive to Aboriginal and Torres Strait Islander people appearing before the court. Queensland Murri Courts are not created under statute, and ‘operate under the goodwill and commitment of individual magistrates’.[33]

11.30  Murri Courts focus on underlying causes of offending, such as substance abuse or poor mental health, and refer people who appear before it to support services in the community where required.[34] These Murri Courts also seek to provide magistrates with better information on the ‘defendant’s cultural and personal circumstances’ that may contribute to their offending.[35] This is achieved in part through the use of Community Justice Groups (CJGs), which make submissions on matters relating to the offender’s community; provide information about relevant cultural considerations; and describe available community services or programs.[36] CJGs may also have a role in bail applications.[37]

11.31  In 2010, an Australian Institute of Criminology (AIC) evaluation observed the ‘considerable success’ of Queensland Murri Courts in improving relationships between Aboriginal and Torres Strait Islander communities and Queensland Magistrates Courts.[38] This included an increase in appearance rates, an increase in opportunity for those appearing to be linked up with rehabilitative services,[39] as well as the fact the initiative was ‘highly valued’ among Aboriginal and Torres Strait Islander community stakeholders.[40]

South Australian Nunga Courts

11.32  The Nunga Courts in SA were established in 1999 and were the first Aboriginal sentencing courts in Australia. They currently run periodically in three courthouses, and operate in the summary jurisdiction.[41]

11.33  Aboriginal Sentencing Conferences are available in all criminal jurisdictions, and permit the court to sentence an offender in an informal setting that encourages the defender to speak about their offending. Sentencing Conferences were created under statute.[42] A 2008 evaluation of Aboriginal Sentencing Conferences found that conferencing was likely to be a more effective deterrent for Aboriginal and Torres Strait Islander offenders than mainstream court due to: its relevance to Aboriginal people; the participation of Elders; the case management into relevant services; and the provision of relevant information to the court, which leads to ‘more effective sentencing’.[43]

11.34  Both sentencing practices include Aboriginal Justice Officers who provide information, support and advice to Aboriginal defendants and their families.

Other specialist courts

11.35  There are other specialist courts that address criminogenic factors, such as drug addiction and mental health issues. These courts are available to Aboriginal and Torres Strait Islander peoples, but are not specific to them. The ALRC has visited the Drug Court of NSW and the Victorian Neighbourhood Justice Centre (NJC), which are briefly summarised below.

The Drug Court of NSW

11.36  The Drug Court of NSW is a specialist court that takes referrals from the NSW Local Court or the District Court of NSW. The Drug Court sits in Parramatta, Toronto and Sydney[44] and aims to address drug dependencies related to criminal offending.[45] This is achieved through intensive case management between court teams, community agencies, and the judge. It is also achieved through participant sanctions for non-compliance with program conditions—including the sanction of imprisonment, which is used as a last resort. Participants are regularly tested for drugs.[46]

11.37  In 2008, the BOCSAR evaluation of the Drug Court showed it to be more cost effective than prison in reducing the rate of reoffending among offenders whose crime was drug related.[47] This included a 38% decrease in recidivism for a drug offence during the follow-up period, and a 30% decrease in recidivism for a violent offence.[48]

Victorian Neighbourhood Justice Centre

11.38  The NJC is a Victorian Magistrates’ Court of first instance established in 2007, and is Australia’s first community justice centre.[49] It seeks to resolve disputes by ‘addressing the underlying causes of harmful behaviour and tackling social disadvantage’.[50] The NJC combines the usual powers and functions exercised by the Magistrates’ Court, but is co-located with treatment and support services. This facilitates immediate referral to appropriate services.[51]

11.39  Koori Justice Workers support Aboriginal and Torres Strait Islander clients and provide advice to the Court in relation to culturally specific programs and services.[52] The NJC also holds a monthly Aboriginal Hearing Day during which all cases involving Aboriginal defendants are heard, in order ‘to provide better support for Aboriginal clients and to increase court attendance’.[53]

11.40  The NJC was evaluated in 2010. It was found that recidivism rates for participants reduced by 7%. The opening of the NJC also aligned with a reduction in the crime rate in the City of Yarra by 12% in the first two years.[54] A later 2015 AIC evaluation of the NJC revealed that

[T]he City of Yarra has the highest crime rate of any Victorian Local Government Area (LGA) other than the City of Melbourne, with an aggregate crime rate in 2007–08 of around 18,000 per 100,000 population ... In the period after the NJC was established, crime rates in Yarra have fallen, with a 31 percent decline in total crime, largely as the result of a 40 percent decline in property crime. Crime rates have generally fallen in Victoria over the same period ... but the decline in Yarra is greater than that observed in comparable inner urban LGAs ... or LGAs with high levels of social disadvantage[55]

Court diversion programs and specialist lists

11.41  Court diversion programs allow magistrates or judicial officers to adjourn matters while defendants engage in support services. Diversionary programs provide services for people who have been accused or convicted in the summary jurisdiction, who require assistance with addiction or mental health. These include, but are not limited to:

  • the Australian Capital Territory Court Alcohol and Drug Assessment Service, which incorporates drug and alcohol counselling during court proceedings or as part of sentencing orders;[56]

  • Magistrates Early Referral into Treatment program (NSW and Queensland), which allows people whose offending is related to their substance abuse issues to voluntarily enter into rehabilitation as part of the bail process;[57]

  • the Victorian Court Integrated Services Program,[58] which includes Aboriginal and Torres Strait Islander controlled and mainstream organisations;[59] and

  • the Victorian Assessment and Referral Court list, which provides ‘case management to participants including psychological assessment, referral to welfare, health, mental health, disability, housing services and drug and alcohol treatment’.[60]

Key elements

11.42  Although specialist courts, lists and programs vary in many respects, there are a number of key elements which stakeholders in this Inquiry have emphasised as critical to the operation and success of these models, including:

11.43  Active participation of the defendant and community: Specialist courts aim to increase active participation through the inclusion of key community members, such as Elders, and the use of plain English to ensure that processes and requirements imposed by the court are well understood by the person appearing.[61]

11.44  The Koori Courts in Victoria have a legislated purpose of ‘ensuring greater participation of the Aboriginal community in the sentencing process’.[62] The legislative aims of NSW Circle Sentencing include increased participation of Aboriginal offenders, victims, and community members in sentencing processes, and to improve community confidence in sentencing processes.[63]

11.45  Case management of the defendant: A number of the specialist courts and programs observed by the ALRC or highlighted by stakeholders include case management, whereby people appearing before them are referred to support services operating in the community. In most of these examples, the court or program has established links with supports and is able to facilitate engagement with the defendant.[64] Case management is particularly noticeable in courts and programs that focus on underlying issues—such as diversionary programs, the Drug Court of NSW, and the NJC.[65]

11.46  Cultural competence: Culturally competent specialist courts aim to directly engage with Aboriginal and Torres Strait Islander peoples in the design and decision-making processes of the court. Cultural competence in specialist courts can constitute: employing legal officers who are trained in the particular issues that can arise for Aboriginal and Torres Strait Islander peoples; and changing mainstream court environments—for example through the use of a round table, or the display of the Aboriginal and/or Torres Strait Islander flag.[66]

11.47  A 2006 evaluation of the Queensland Murri Court included a survey with Aboriginal and Torres Strait Islander respondents who supported ‘the Murri Court concept because it involved Indigenous people in the justice system and made the justice system more responsive to the needs of Indigenous offenders and thus more culturally appropriate than other Magistrates Courts’.[67] Other evaluations have found that Aboriginal and Torres Strait Islander specialist courts provide a sense of ownership to participants over court processes and outcomes;[68] increase court appearance rates for Aboriginal and Torres Strait Islander offenders;[69] and improve compliance with court orders.[70]

11.48  Specialist courts and diversionary programs are not always available. Alternative criminal justice responses tend to be concentrated in metropolitan areas.[71] This may be because necessary treatment and community resources are available in metropolitan areas.[72] In particular, dedicated rehabilitative services—such as community drug and alcohol counselling providers—are much less likely to service non-metropolitan areas.[73] Even where available, places in treatment and community support services are limited.[74]

11.49  Specialised courts are more resource intensive than mainstream courts.[75] Participants in specialist courts may have to appear multiple times over an extended period (due to case management and judicial monitoring);[76] and treatment and community resource providers are an obligatory component of many specialist courts.[77]

11.50  The ALRC welcomes submissions on whether reform to laws and legal frameworks related to specialist courts or lists are required to further increase access to justice for Aboriginal and Torres Strait Islander peoples.

[19]           Office of Crime Statistics and Research, Aboriginal (Nunga) Courts—Information Bulletin (2010) 2.

[20]           See, eg, Marchetti, Elena, ‘Indigenous Sentencing Courts’ (Research Brief No 5, Indigenous Justice Clearinghouse, December 2009) 1; Elena Marchetti and Kathleen Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29(3) Sydney Law Review 1; Office of Crime Statistics and Research, Aboriginal (Nunga) Courts—Information Bulletin (2010) 3–4.

[21]           See, eg, Elena Marchetti and Janet Ransley, ‘Applying the Critical Lens to Judicial Officers and Legal Practitioners Involved in Sentencing Indigenous Offenders: Will Anyone or Anything Do?’ (2014) 37(1) University of New South Wales Law Journal 15; Nigel Stonns and Geraldine Mackenzie, ‘Evaluating the Performance of Indigenous Sentencing Courts’ (2009) 13(2) Australian Indigenous Law Review 90; Michael S King and Kate Auty, ‘Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction’ (2005) 30(2) Alternative Law Journal 69, 69.

[22]           See Magistrates’ Court Act 1989 (Vic) s 4D; County Court Act 1958 (Vic) s 4A; Children, Youth and Families Act 2005 (Vic) s 517.

[23]           Magistrates’ Court of Victoria, Koori Court <www.magistratescourt.vic.gov.au/koori-court>.

[24]           The Koori Court Officer is available to provide assistance to both the Court and the accused and their family. Koori Court officers also engage with the local community. For more information, see County Court of Victoria and the Department of Justice, County Koori Court: Final Evaluation Report (2011) 9.

[25]           Magistrates’ Court of Victoria, above n 23; County Court of Victoria, County Koori Court <www.countycourt.vic.gov.au/county-koori-court>.

[26]           Higher than a Magistrates or Local Court—meaning a District or County Court or above.

[27]           County Court of Victoria and the Department of Justice, County Koori Court: Final Evaluation Report (2011) 49.

[28]           Ibid 3.

[29]           Circle sentencing courts operate under Part 6 of the Criminal Procedure Regulation 2010 (NSW) and the common law principles espoused in R v Fernando (Unreported, Supreme Court of NSW, 13 March 1992).

[30]           Jacqueline Fitzgerald, ‘Does Circle Sentencing Reduce Aboriginal Offending?’ (Contemporary Issues in Crime and Justice No 115, NSW Bureau of Crime Statistics and Research, 2008) 7.

[31]           Ibid.

[32]           Don Weatherburn, Arresting Incarceration—Pathways out of Indigenous Imprisonment (Aboriginal Studies Press, 2014) 101.

[33]           Mary Westcott, ‘Murri Courts’ (Research Brief No 2006/14, Parliamentary Library,  Parliament of Queensland, 2006) 2. Murri Courts also utilise the Penalties and Sentences Act 1992 (Qld) s 9(2)(o), which requires the court have regard to any relevant submissions made by a representative of a Community Justice Group (CJG) existing in the offender’s community that are relevant to sentencing the offender. CJGs are discussed below.

[34]           Queensland Courts, Murri Court <www.courts.qld.gov.au/courts/murri-court>.

[35]           Ibid.

[36]           See Penalties and Sentences Act 1992 (Qld) s 9(2)(p).

[37]           See Bail Act 1980 (Qld) s 16(2)(e).

[38]           Anthony Morgan and Erin Louis, ‘Evaluation of the Queensland Murri Court: Final Report’ (Technical and Background Paper No 39, Australian Institute of Criminology, 2010) 150.

[39]           Ibid.

[40]           Ibid iii.

[41]           Courts Administration Authority of South Australia, Aboriginal Sentencing Courts and Conferences Nunga Courts <www.courts.sa.gov.au>.

[42]           Criminal Law (Sentencing) Act 1988 (SA) s 9C.

[43]           Office of Crime Statistics and Research, Port Lincoln Aboriginal Adult Conference Pilot: Review Report (2008) iii.

[44]           The NSW Drug Court is established by and operates under the Drug Court Act 1998 (NSW). Like many other specialist courts, the Drug Court requires a guilty plea before participants are accepted, see Drug Court Act 1998 (NSW) s 5(1)(c).

[45]           Don Weatherburn et al, ‘The NSW Drug Court: A Re-Evaluation of Its Effectiveness’ (Contemporary Issues in Crime and Justice No 121, NSW Bureau of Crime Statistics and Research, September 2008) 1.

[46]           Ibid 3.

[47]           Ibid 2.

[48]           Ibid 9.

[49]           The NJC is provided for and operates under the Courts Legislation (Neighbourhood Justice Centre) Act 2006 (Vic).

[50]           Neighbourhood Justice Centre, About Us <www.neighbourhoodjustice.vic.gov.au>.

[51]           Ibid.

[52]           The NJC currently employs two Koori Justice Workers.

[53]           Neighbourhood Justice Centre, Aboriginal and Torres Strait Islander Support Services <www.neighbourhoodjustice.vic.gov.au>.

[54]           Department of Justice (Vic), Evaluating the Neighbourhood Justice Centre in Yarra 2007–2009 (2010) ii.

[55]           Stuart Ross, ‘Evaluating Neighbourhood Justice: Measuring and Attributing Outcomes  for a Community Justice Program (2015)’ (Trends and Issues in Crime and Criminal Justice No 499, Australian Institute of Criminology, November 2015) 4 <http://www.aic.gov.au/media_library/publications/tandi_pdf/
tandi499.pdf>.

[56]           Department of Health (ACT), Diversion Services—Court Alcohol and Drug Assessment Service <http://www.health.act.gov.au/our-services/alcohol-and-other-drugs/diversion-services>.

[57]           Department of Justice (NSW), Magistrates Early Referral Into Treatment <http://www.merit.justice.
nsw.gov.au/>.

[58]           Magistrates’ Court of Victoria, Court Integrated Services Program (CISP) <www.magistratescourt.
vic.gov.au>.

[59]           Magistrates’ Court of Victoria, Court Integrated Services Program (CISP) Koori Brochure (2008).

[60]           Magistrates’ Court of Victoria, Assessment and Referral Court List <www.magistratescourt.vic.gov.au>.

[61]           King and Auty, above n 21, 69–71.

[62]           Magistrates’ Court (Koori Court) Act 2002 (Vic) s 1.

[63]           Criminal Procedure Regulation 2010 (NSW) reg 35.

[64]           Ross, above n 55, 2; Magistrates’ Court of Victoria, Court Integrated Services Program (CISP) Brochure <www.magistratescourt.vic.gov.au>; Queensland Courts, above n 34.

[65]           The Drug Court, as noted, utilises a combination of regular judicial monitoring, achieved through regular court appearances, and sanctions for failing to meet program requirements, such as urine testing.

[66]           King and Auty, above n 21, 70.

[67]           Natalie Parker and Mark Pathé, ‘Report on the Review of the Murri Court’ (Department of Justice and Attorney-General (Qld) 2006) quoted in Stonns and Mackenzie, above n 21, 99.

[68]           See, eg, Judicial Commission of New South Wales, Circle Sentencing in New South Wales—A Review and Evaluation (2003); Fitzgerald, above n 30; Office of Crime Statistics and Research, Port Lincoln Aboriginal Adult Conference Pilot: Review Report (2008).

[69]           See, eg, Office of Crime Statistics and Research, Aboriginal (Nunga) Courts—Information Bulletin (2010); Allan Borowski, ‘Indigenous Participation in Sentencing Young Offenders: Findings from an Evaluation of the Children’s Koori Court of Victoria’ (2010) 43(3) Australian & New Zealand Journal of Criminology 465; Victorian Sentencing Advisory Council, Sentencing in the Koori Court Division of the Magistrates’ Court: A Statistical Profile (2010).

[70]           See, eg, Department of Justice (Vic), ‘A Sentencing Conversation’: Evaluation of the Koori Courts Pilot Program October 2002–October 2004 (2006); Natalie Parker and Mark Pathé, ‘Report on the Review of the Murri Court’ (Department of Justice and Attorney-General (Qld), 2006).

[71]           Richard Coverdale, Centre for Rural Regional Law and Justice Deakin University, Postcode Justice: Rural and Regional Disadvantage in the Administration of the Law in Victoria (2011) 40: ‘74% of all respondents agreed or strongly agreed that their clients were disadvantaged by a lack of local access to specialist [courts]’.

[72]           Ibid 129–31.

[73]           Michael King, ‘Applying Therapeutic Jurisprudence in Regional Areas—The Western Australian Experience’ (2003) 10(2) Murdoch University Journal of Law 2.

[74]           Richard Coverdale, Centre for Rural Regional Law and Justice Deakin University, above n 71, 129.

[75]           Ibid 37–8.

[76]           Lorana Bartels, ‘Challenges in Mainstreaming Specialty Courts’ (Trends and Issues in Crime and Criminal Justice No 383, Australian Institute of Criminology, 2009) 4.

[77]           Ibid 1–2.