When Stipendiary Magistrate John Birch’s Court caravan rolled into Yuendumu late last week he bought a new model of the law into town with him. Community Courts, as distinct from the regular Magistrates Court being held in a community, have been around in the Territory since 2005 but until last week had only been active in Darwin and a few small communities in the Top End – last week saw the first sitting of the Community Court at Yuendumu. Three defendants were listed to appear before the Community Court – in the end only one defendant faced his community, the other two adjourned to the next sitting scheduled for December.

Community Courts have been in operation in Australia since 1999 and the Northern Territory has been a slow and somewhat reluctant late-adopter of the concept – which is surprising in view of the disproportionate incarceration rate of Aboriginal people and the integrity of extant traditional Aboriginal cultures in many townships in the Territory.

And, while there are now Community Courts, perhaps better described as Indigenous sentencing courts, operating in all Australia States and Territories other than Tasmania, and despite substantial variation in the models developed and applied, they share some common principles – a more culturally relevant local court model and increased participation by Aboriginal defendants and their community in the evidential and sentencing processes. For a useful examination of the history and philosophies behind the operation of Indigenous Sentencing Courts in Australia see this paper by Marchetti and Daly published in 2007 by the Sydney Law Review. For a more general discussion of specialty courts, including Indigenous sentencing courts, see this paper by Jason Payne published in 2006 by the Australian Institute of Criminology.

There are very real concerns that the implementation community courts by the NT Government has some serious flaws that may see the model fail – if it does then it may be just another in the long list of symbolic exercises by Governments established with noble intentions but flawed in their implementation. The problems with the model adopted in the Territory are said to arise from two key issues – lack of a set of clear, appropriate and current guidelines and legislative support and a lack of appropriate financial and human resources committed to the project.

The first issue, the legislative powers and basis of Community Courts, concerns the jurisdictional basis for the operation of community courts, which in the NT arises from each magistrate’s general sentencing discretions and section 104A of The Sentencing Act. Section 104A allows the Court to accept “Information on Aboriginal customary law and community views”. In 2005 the then Chief Magistrate, Hugh Bradley, published a set of Guidelines for the conduct of the Community Courts but it is unclear whether these have been recently updated for more general application outside of the specific circumstances of the Top End. Of very real concern is that of the Territory’s twelve magistrates there are several, perhaps as many as 6, who have refused to participate in community courts, apparently for reasons that Crikey understands are related to the lack of a clear legislative basis for the exercise of their powers.

The second issue of the financial and human resources dedicated to the development and operation of community courts in the NT is of greater concern. In August 2007 then NT Chief Minister Clare Martin announced her government’s responses to the Little Children are Sacred Report by Rex Wild and Pat Anderson into child abuse and neglect in the NT’s remote Aboriginal townships. One of those responses included the establishment of 10 Community Courts. The NT Government’s 2008 Budget statement released in May this year noted that $420,000 had been set aside to establish 10 community courts. A related measure was for $980,000 for an additional 10 community corrections officers and 2 court clinicians.

But there is widespread concern in the Territory’s small legal profession that the NT Government’s proposals may not be effective on-the-ground and may fail through lack of resources.

Mary Spiers, a lawyer working for the Tangentyere Council’s Kurduju project, which is dedicated to “improv[ing] community safety and justice outcomes for Warlpiri communities, including Yuendumu, Lajamanu, Ali Curung and Willowra”, told Crikey at Yuendumu last week:

“There is still a long way to go…the Magistrates, the Court staff, the prosecutors and the lawyers are working without any support, any infrastructure, no funding at all. They’re required to do this within existing resources, which are, especially for the Courts, extremely strained. Now the Government has decided that there won’t be any community courts facilitation officers – there will just be a low-graded officer…they need these extra resources anyway because of the zero-tolerance policing bought in by the Commonwealth Intervention”.

Glen Dooley is the Principal lawyer at the North Australian Aboriginal Justice Agency (NAAJA). NAAJA provides legal advice and representation in city-based and remote Courts across the Top End of the NT. Crikey asked Glen about NAAJA’s perspective on the Community Courts model in the NT:

“NAAJA welcomes any efforts made to expand the Community Court system. Basically the current court system has taken a very narrow approach to dealing with crime in the NT. The Community Courts really open up the possibility of meaningful sentences that will have a real effect upon the perpetrator – the idea being of course that if you are going to reduce crime you have to give them a sentence that will have a meaningful effect on their behaviour – locking people up in jail for increasing levels of time, increased levels of recidivism – its really become an horrendous circus.”

“NAAJA believes that the Community Courts as set up by the NT are not that adventuous. It is really only a shadow of what is on offer down south, for example the better-resourced Koori Courts in Victoria, where we see the genuine input from the community and the views of the community carry a lot more weight in terms of the sentencing outcomes. In NAAJA’s experience the Community Courts in the NT are often compressed, they are rushed – the courts out bush have huge lists so that when they do get around to doing anything we find that some of the magistrates are less than enthusiastic – some magistrates won’t touch (Community Courts) at all.”

“In the Territory at the moment we have a very nebulous model for Community Courts, it is underfunded, even with this new funding. I think that the Government has to get the bit between the teeth and make some decisions that might be unpopular and the government might have to wear a few slings and arrows from the public but the current government is totally incapable of showing any leadership on this issue at all. In our view they need to be bold and to address these difficult issues. The Government is talking about putting another $300 million towards locking up another 500 people in a new goal – there seems to be no trouble to find money to pander to the wishes of the revenge-fixated parts of the general population in terms of their concerns about combating crime, but we all know, and the Government knows, that increased imprisonment has no effect on the rates of crime.”

“Magistrate Birch should be congratulated on his willingness to share the ownership and operation of his court with the local community – he obviously has a clear vision of where this initiative might lead. It is good that he’s prepared to put aside his ego and agree to share some of his powers with the local community and to get a better result. If that attitude could take hold we could really progress. Chief Magistrate Jenny Blokland supports these courts and all the reports we get about her conduct of the Community Courts are very positive.”

“In the NT we really have an opportunity to lead these changes and to make the input of Aboriginal people in our courts the strongest in Australia and not the least. It is fairly ironic that in Victoria has a much more progressive court, the Koori Court, and then you have our situation in the Territory where we have the most tentative courts of this type. There is a lot of work to be done.”

“All this of course must be seen in the context of the Federal Intervention where there is so much emphasis on law and order and the recent Intervention Review, where they have recommended that the 18 temporary Police stations set up by the Intervention become permanent, fully-staffed Police stations. We are going to have a hell of a lot more Policemen charging around the bush charging people. We are getting some very interesting feedback from these temporary Police stations that a lot of their work involves charging people with minor offending and traffic offences, and these extra cases will put further strain on the current court system.”

And the community court hearing at Yuendumu? The members of the Yuendumu mediation and Justice Group were joined by a carefully selected group of community court participants made up of respected community members and the defendant’s family and kinship group. The Prosecutor read the charges against the defendant, who then entered a plea of guilty. Magistrate Birch then led the group though the evidence against the defendant, the Kardia law as it might apply in his Court of Summary Jurisdiction and the nature of the charges against him.

The collected members of the community court held an extensive and free-ranging discussion of the issues in Warlpiri, occasionally asking Magistrate Birch about points of law and Kardia sentencing options and principles. They also “talked strong” to the defendant and reminded him that regardless of the outcome of the court, they would be watching him closely in future and expected his full cooperation. Magistrate Birch was asked what might happen to the defendant under a number of sentencing options and he indicated that he would consider normally consider a community service order of about 50 hours, and some restrictions on travel and consumption of alcohol as appropriate. Further discussion between the court members and the defendant resulted in a slightly modified version of the recommendations from magistrate Birch, with a strong indication that the defendant would be subject to the informal and watchful supervision of the community court members to ensure that he complied with the orders of the Court in the future.

For a lawyer used to seeing the ‘sausage-grinder” of the Magistrates Court in remote townships in the NT attending this fledgling effort by the community court at Yuendumu was a refreshing change from the usual course of events where the prosecutor reads the charges, the defendant mumbles a guilty plea, the defendant’s lawyer gives a perfunctory explanation of the client’s difficult circumstances and the Magistrate dispenses the summary justice of a fine, community service or time in a far-off prison,

Here there was real engagement by the offender, his community, and the magistrate – the defendant spoke clearly and with his head up, the members of the court spoke out strongly and in their own language and the magistrate spoke to all as an equal.

As magistrate Birch told Crikey:

“I thought the Court was very successful today. There was a lot of consultation behind the scenes to ensure that the right members of the community were on the Court, that the defendant fully understood what was taking place and everyone spoke out and were prepared to contribute to the proceedings. And the Mediation and Justice group here at Yuendumu is growing in confidence all the time…there is very much a sense of ownership of this Court and I agree that it is now very much the community’s Court as much as it is mine.”

And magistrate Birch recognised the burden that Community Courts can impose on the work of magistrates and court staff and resources:

“One of the difficulties is resources, because it places extra difficulties on the Court itself to find the time to attending to Community Courts. The Chief Magistrate has supported central Australian (courts) by providing relief for the Alice Springs magistrates when they go out bush.”

The comunity court at Yuendumu will sit again in mid-December – by then more will be known about the NT Government’s plans for Community Courts across the NT. Hopefully the experience and care that the members of the Yuendumu Mediation and Justice group bring to their work will be rewarded with a court scheme that recognises their abilities and the contribution that they can bring to justice in their township.