The Koori Court

The Koori Court is a specialist division of the Magistrate’s Court of Victoria. It hears criminal matters where the accused person is of indigenous background and intends to plead guilty (the word ‘Koori’ describes an indigenous person from the south-east of Australia). The aim of the Koori Court is to allow a more informal legal hearing, where matters can be discussed openly and without complicated legal procedure or jargon. The Koori Court also allows for the participation of members of the indigenous community, such as elders or members of the defendant’s family. Being a division of the Magistrate’s Court, the Koori Court deals with offences at that level and has the same sentencing powers. The Koori Court is not permitted to deal with all offences, however.

The Koori Court was formed by the Victorian Labor government in 2003, in response to several problems. According to then attorney-general Rob Hulls, indigenous offenders in Victoria were 11 times more likely to be jailed than non-indigenous offenders. This was due, in large part, to non-attendance at court hearings. Inquiries and consultation conducted in the late 1990s found that indigenous offenders were intimidated by the formality and procedures of criminal hearings in the Magistrate’s Court. Many also did not have access to legal advice or representation and did not understand the options available to them, after they had been charged with a criminal offence. In this situation, many indigenous offenders found it easier to not show up to court. These inquiries recommended changes that would make Victoria’s legal system less culturally alienating for indigenous people, and thus encourage them to attend court hearings.

Some of the features and procedures of the Koori Court include:

Indigenous status. The accused person must identify as an Aboriginal or Torres Strait Islander and must be accepted as such by the Aboriginal and Torres Strait Islander community.

Jurisdiction. He or she must be charged with an offence that falls within the jurisdiction of the Magistrates’ Court. If the charge relates to a sexual offence (as determined by the Sentencing Act) or a family violence matter, then it must be dealt with by the mainstream Magistrates’ Court. Breaches of previous sentencing orders by the Koori Court must also be heard by the Magistrates’ Court.

Guilty plea. The accused person must intend pleading guilty to the charge. There is no facility in the Koori Court for contested matters. They must also consent to have their charge dealt with by the Koori Court.

Location. The Koori Court meets intermittently in various locations around Victoria, including Melbourne, Broadmeadows, Bairnsdale, Shepparton, Mildura, Moe, Swan Hill and Warrnambool. Dates for Koori Court hearings are determined by the Chief Magistrate of Victoria.

Informality. The procedures at a Koori Court hearing are more relaxed and informal than the mainstream court system. The magistrate and a representative of the Koori community, such as an elder or a ‘respected person’, sit at a large table with the accused and other parties. The accused may have legal representation and may also be accompanied by a family member.

Plain language. Everyone is encouraged to speak freely; legal jargon and complicated language are avoided. The accused will have their legal and sentencing options explained to them in plain English.

Evidence. The Koori Court can consider verbal testimony or written evidence from a wide range of parties. These include an Aboriginal justice worker, a parole or corrections officer, a healthcare worker, a psychologist or social worker, or any other person the Koori Court deems appropriate. Victim(s) of the offence and family members of the accused can also be called upon to provide evidence to the Koori Court.

Community involvement. When considering the charge, the magistrate will usually take advice from the Koori community representative. Many sanctions are therefore formed by negotiation between the two – though the magistrate has ultimate authority in deciding on sentencing.

Transferability. At any time during a Koori Court hearing, the magistrate can order the hearing to be transferred to the mainstream Magistrates’ Court. This is not common but may occur if the defendant refuses to admit guilt, contests the charge, refuses to accept instructions or is aggressive to members of the court.

Sentencing. The Koori Court has the same sentencing options as the mainstream Magistrates’ Court, although it is more likely to employ sanctions other than imprisonment, such as diversionary programs and community-based orders. The Koori Court can impose sanctions with or without conviction. If a person dealt with by the Koori Court breaches the sentencing order, this breach must be dealt with by the Magistrates’ Court or a higher court – it cannot be reconsidered by the Koori Court.

Since its inception, the Koori Court has been a controversial body, generating both praise and criticism. It was strongly opposed by the Victorian Liberal opposition, which claimed it established a two-tiered and discriminatory system of justice. According to the shadow attorney-general, it offered indigenous Victorians legal access and options that were not available to non-indigenous citizens. Most in the legal fraternity, however, welcomed the formation of the Koori Court. Both the chief magistrate and police commissioner have been strong supporters of the Koori Court, while indigenous groups have also welcomed it. There is also some evidence, such as a report by the Victorian auditor-general, that the Koori Court has helped reduce indigenous recidivism (repeat offences after being punished by a court).