ONE HUNDRED YEARS ago, colonial criminal law applied to Indigenous people in the bush was rough justice, if it was any sort of justice at all. Historical surveys describe police officers and judges visiting remote communities in a whirlwind of terrifyingly swift and often arbitrary criminal punishment.[i] Over half a century later, in the 1970s, ‘bush courts’, as they came to be known, were more formally incorporated into the criminal justice system. Even then, the courts still focused on efficiency rather than justice. Accounts from that time include descriptions of court hearings in the Alice Springs region where Aboriginal defendants were herded together like cattle for group sentencing exercises unlike anything permitted in the southern capitals.[ii] Now, another fifty years later, we have come some way, but not so far as we might like to believe. People living in remote Indigenous communities continue to be afforded a second-class justice system, the reality of which is largely unknown beyond those communities and the lawyers that service them.
The colonial frontier in Australia was a largely lawless zone, at least in the sense of ‘law’ as white Australians use that word. There was law and order of sorts, but it was a law of individual application. Powerful white colonials on the frontier would determine which crimes involving Indigenous people ought to be prosecuted, and which excused or ignored. If the whim of those in power tended against the Indigenous person then they might be shackled and transported to the closest colonial outpost with a courthouse. This sometimes meant that people in Alice Springs were marched hundreds of kilometres to board trains ultimately bound for courts on the South Australian coastline.[iii] The 1905 Western Australian Report of the Royal Commission on the Condition of the Natives described police indiscriminately arresting Aboriginals and shackling them in chains. The report was scathing: ‘Your Commissioner has received evidence which demonstrates a most brutal and outrageous state of affairs… Children of from 14 to 16 years of age are neckchained…in addition to neck chains, the prisoner may be still further secured with cuffs on his wrists…or on his ankles.’[iv]
In the Northern Territory, ‘native courts’ were established to administer justice to Indigenous people on what were called ‘reserves’. These courts had special powers to impose punishments above and beyond what could be imposed on non-Indigenous people. For example, an Indigenous person sentenced to a caning could receive eight more cane strokes than a non-Indigenous person sentenced for the same crime.[v] In other states, remote areas were under the jurisdiction of Justices of the Peace, or ‘JPs’ as they were colloquially known. In general, JPs were not legally trained. Instead, they were considered to be police officials.[vi] Obviously, this created a problematic perception (and likely a reality) that the judicial process was an extension of policing. (This perception continues today, with Senator Patrick Dodson describing the view in some Indigenous communities that police are the ‘boss of the courts’.)[vii]
THE PROBLEMATIC PROXIMITY of the judicial and police processes physically manifested when bush courts were formalised in the 1970s. Starting in 1970 in New South Wales, Indigenous legal aid services began opening across Australia. Apart from providing legal services to Indigenous people in urban courts, this development allowed, for the first time, a more regular and formal schedule of courts visiting remote communities (usually once every few months). This was the birth of the modern bush court.
Initially, most bush courts were held at the local police station or a nearby council building. An early Northern Territory legal aid lawyer, and then judge, described the typical bush courtroom in the following terms:
The Court does not have a proper courtroom, but sits in a small room which is part of the local police station. The furniture is rudimentary, with witnesses in very close proximity to the Bar and Bench. There is scarcely enough room for the Magistrate, prosecutor, defence counsel, accused, witness and interpreter and almost no room for spectators. This creates serious issues about the appearance of the independence of the judiciary.[viii]
In some of the most remote communities there was no appropriate building in which to conduct bush courts. This meant that court was held in a tin shed. Reminiscing about these courts, legal aid lawyers describe scores of clients being represented in an unorthodox en masse style whereby the single Aboriginal legal aid lawyer would stand up at the start of court and announce that they represented all of the persons accused before the court that day, and every person would be saying ‘not guilty’.[ix]
Despite being largely unknown outside of legal circles, bush courts continue to operate throughout Australia every week. Writing in 2009, Glen Dooley, a former Indigenous legal aid manager, explained: ‘Bush courts exist to process Aboriginal people…in respect of quite minor crimes.’[x] Dooley, perhaps unintentionally, used the verb ‘process’ and there can be no better way to describe the administration of bush courts. It is conveyer-belt justice delivery.
A typical day[xi] at bush court will see the judge and court staff arrive in a light plane at around 9 am. They will be picked up from the airstrip by a police car, which will drive them to the ‘courtroom’, usually a local council office sometimes not much bigger than a shipping container. One community has even resorted to holding bush court in the kindergarten library.[xii] Once there, court staff will unpack and assemble their laptops, printers, microphones and recording equipment, like a SWAT team setting up a temporary base on foreign territory. The defence lawyers (normally there will be two) and prosecutor (just one) will have arrived the night before and attempted to meet with clients and witnesses ahead of the court day. Inevitably, however, most clients meet their lawyer for the first time on the day of their court appearance.
When they arrive at court, clients will be asked to put their name on a list and then sit and wait, often for up to six or eight hours, before they are seen by a harried and apologetic defence lawyer. This waiting is perhaps the characteristic experience of court users in remote communities. Hours of sitting and waiting. Not on benches in air-conditioned court foyers (there are no such things), but on the dusty ground, leaning against fences or sprawled in the trays of utes parked in the shade. Notwithstanding the long wait, when the lawyer finally gets to see their client, the conversation will rarely last longer than a few minutes. Sometimes the client will get no more than a few words frantically whispered at the door to the court as the judge orders the matter to immediately be brought on. At the busiest bush courts, lawyers will occasionally ask a dozen clients to line up before calling them in one at a time for the inevitably perfunctory court hearing. Experiences such as these have led such courts to be described as ‘sausage-factory justice’.[xiii]
The volume of people required to attend a single day of bush court can be staggering, with up to 150 matters on the list. When one takes into account the fact that some of these matters can be quite involved, requiring up to an hour for complex sentencing, the time remaining for the other individuals is impossibly short. Such time pressures result in some bush courts dragging late into the evening (if there is no return flight to catch). I have personally appeared in bush court until after 8 pm. The mental resources available to the lawyers and the judge at this time are obviously depleted. There can be no doubt that mistakes are made that would not be made if everyone had the luxury of time. Indeed, the Supreme Court of the Northern Territory will occasionally refer to the intense workload of judges at bush courts in order to excuse or explain what might appear to be errors or insufficiencies in their judgments.
By no means are the mistakes only made by judges; lawyers make as many, if not more. Lawyers see so many clients over the course of a day at bush court that it is not uncommon for a lawyer to find herself halfway through her oral submissions to the court only to realise that she is describing the wrong client – another person in the queue outside. Sometimes the submissions are so brief that it would barely matter if it were the wrong client. Here is an example of my scribbled notes for a recent bush court sentencing hearing.
– 21 y/o
– no priors
– two kids
– been through ceremony
– plays footy
– started drinking 15 years old
– never knew dad
Finally, and saddest of all, the mass processing model of bush courts means that pressure is exerted on the community members attending court. Lawyers will often only have time for a few quick questions about the alleged offending – Did you drive that car? Did you know it was stolen? – before advising the client to either plead guilty or contest the charges. If the client wants to contest the charges, they will inevitably have to return to court the following month (and then likely the month after that, and the month after that) as the prosecution gathers further information and corrals often unwilling witnesses into giving evidence against their neighbours or family members. The drawn-out process of contesting charges is well known in remote communities, and creates an insidious incentive to plead guilty, even if there might be a basis for defending the charges. I cannot begin to count the number of times a client has told me, ‘I’ll say guilty; I just want it finished today’, even after I have advised them that they are innocent of the crimes charged against them. I am not the only one to have this experience. One long-time legal aid lawyer described clients saying ‘guilty’ in court without even knowing what they had been charged with.[xiv]
Because of the high volume of people processed through bush courts, and the manner in which they are processed, the court proceedings fulfil almost none of the traditional aims of the criminal justice system. There is no individualised justice because time constraints require judges to sentence offenders on scant information, almost solely relying on their age and prior criminal record rather than any relevant personal circumstances. There is no deterrence of future criminal behaviour because neither the individual nor the community receives adequate explanation of the court process and sentencing objectives. Sometimes, the sentences do not even achieve any punitive impact at all, because fines simply accrue against a person’s impossibly large Centrelink debt (that they may have incurred as a result of earlier court appearances, often for driving offences).
In light of all the problems with bush courts, it is unsurprising that many community members view them in a dim light. As Nick Espie, an experienced Indigenous criminal lawyer who has worked in both Western Australia and the Northern Territory, puts it: ‘The whole thing flies in like a travelling circus, and before you know it we are gone again.’[xv]
THERE CAN BE no doubt that Indigenous Australians living in remote places are entitled to access justice at home, in their own communities. However, history suggests that simply transporting the criminal justice apparatus from urban centres to remote communities – often attended by extreme time pressures – produces a two-tiered justice system, with remote Indigenous people receiving a substandard service. How can we do better?
First, we need to start listening to the people in these communities as to how they feel that their area would best be served by changes and innovations in court processes. As Aboriginal activist Larissa Behrendt states in Aboriginal Dispute Resolution (Federation Press, 1995): ‘A community must always decide for itself what is best for its members. Only the community knows what is best for the community.’[xvi] Aspirations will inevitably differ between communities such that there can be no one-size-fits-all approach. Yet innovations in a few places can serve as jumping-off points for similarly situated communities.
In Western Australia, the Law Reform Commission’s inquiry into Aboriginal law identified a feeling among Indigenous communities of being alienated from courts and judges.[xvii] Members of these communities expressed ‘a desire for a…reconfiguration of the layout of the court itself to make it more accessible and comprehensible to Indigenous people’.[xviii] This might mean building more culturally appropriate court structures, or perhaps simply rearranging court furniture into, for example, a ‘sentencing circle’.[xix] Physical changes of this nature could be implemented immediately, and might hopefully begin to improve Indigenous court users’ experience of the bush court justice system.
In the Northern Territory, one distinct community-led innovation has been the creation of local ‘Law and Justice Groups’.[xx] These groups comprise significant individuals in the local community – Elders, traditional owners and other community leaders. By arrangement with the visiting judge, such groups will provide input into the appropriate sentence to be handed down to particular individuals before the court. This input is usually by way of a written report describing the individual’s circumstances and the community’s views as to the appropriate sentence. Ideally, however, members of the local Law and Justice Group will sit in court with the judge during the sentencing proceedings and engage with the individual and the court to make recommendations as to the appropriate sentence. While the judge is not bound to impose that sentence, the recommendations are given considerable weight.
Finally, and related to the Law and Justice Groups, there is the concept of community courts.[xxi] These courts operate to formalise the involvement of Indigenous community members (particularly Elders) in the sentencing hearing. Community courts commenced in the Northern Territory’s East Arnhem Land in 2003–04 in response to growing calls from Indigenous leaders for more meaningful involvement in the sentencing of their community members. To their credit, the Northern Territory judiciary took these calls seriously and developed a formal set of guidelines for such courts. From 2004 until 2012, there were over 200 sittings of community courts in eighteen different locations. Anecdotal reports suggest that these courts were well received in Indigenous communities, but were suddenly disbanded due to insufficient funding and legislative constraints.
Innovations like reconfigured courtrooms, Law and Justice Groups and community courts are just some of the ways we might move beyond the problematic bush court paradigm. It is not essential that the past models are adhered to. On the contrary, law and policy-makers should be listening to each individual community about how they want justice administered there. This will take time, and may be a process of trial and error – but given the current state of bush courts, there can be no question of continuing on the present path.
[i] Harry Blagg, Crime, Aboriginality and the Decolonisation of Justice (2nd ed, 2016) 77; J Evans, “Colonialism and the Rule of Law: The Case of South Australia” in B.S. Godfrey and G Dunstall (eds), Crime and Empire 1840-1940: Criminal Justice in Local and Global Context (Willan Publishing, London, 2005).
[ii] Jon Faine, Lawyers in the Alice: Aboriginals and Whitefellas’ Law (Federation Press, 1993) at 54, 111, 143.
[iii] Dean Mildren, “Public Lecture: Aboriginals in the Criminal Justice System” (2008) 29 Adelaide Law Review 7 at 8.
[iv] W Roth, Royal Commission on the Condition of the Natives: Report (Government printer, Perth, 1905), 13-14.
[v] Native Administration Ordinance, reg 7.
[vi] Bridget Harris, Lucinda Jordan and Lydia Phillips, “Courting justice beyond the cityscape: Access to justice and the rural, regional and remote magistrates’ courts” (2014) 23 Journal of Judicial Administration 158 at 159-160.
[vii] Harry Blagg, Crime, Aboriginality and the Decolonisation of Justice (2nd ed, 2016) 80 quoting Patrick Dodson.
[viii] Dean Mildren, “Public Lecture: Aboriginals in the Criminal Justice System” (2008) 29 Adelaide Law Review 7 at 19 (paraphrasing the observations of Jenny Blokland, now a Judge of the Supreme Court of the Northern Territory).
[ix] Jon Faine, Lawyers in the Alice: Aboriginals and Whitefellas’ Law (Federation Press, 1993) at 156-157.
[x] Glen Dooley, “The Thick Khaki Wall: The ‘Intervention’, Operation Themis and More of the Same for Aboriginal People?’ (paper delivered at Criminal Lawyers Association (NT) Conference, 2009) (emphasis added).
[xi] Here I write from my own experience, which is of bush courts in the Top End of the Northern Territory.
[xii] Natalie Siegel, “The Reign of the Kangaroo Court? Exposing Deficient Criminal Process in Australian Aboriginal Communities: Bush Court” (2002) 1 Indigenous Law Journal 113 at 123.
[xiii] Natalie Siegel, “The Reign of the Kangaroo Court? Exposing Deficient Criminal Process in Australian Aboriginal Communities: Bush Court” (2002) 1 Indigenous Law Journal 113 at 146.
[xiv] Jared Sharp, Churchill Fellowship Final Report (2012) at 8.
[xv] This observation comes from Nick Espie, an experienced Indigenous criminal lawyer who has worked in bush courts in both Western Australia and the Northern Territory. “Good communication of legal issues in the community, with clients and in court”, panel discussion at Language and the Law III, conference convened by the Supreme Court of the Northern Territory in Alice Springs on 5-7 April 2019.
[xvi] Larissa Behrendt, Aboriginal Dispute Resolution (1995) at 108.
[xvii] Law Reform Commission of Western Australia, Aboriginal Customary Laws: Final Report: The Interaction of Western Australian Law and Culture (2006, Law Reform Commission of Western Australia, Perth).
[xviii] Harry Blagg, Crime, Aboriginality and the Decolonisation of Justice (2nd ed, 2016) 110.
[xix] See generally Julian R Murphy, “Architecting Aboriginal Access to Justice: The Courts as Doors to the Law” (2016) 18 Flinders Law Journal 269.
[xx] See generally Dean Mildren, “Public Lecture: Aboriginals in the Criminal Justice System” (2008) 29 Adelaide Law Review 7 at 19-20.
[xxi] This summary of Community Courts is taken from the helpful scholarship of Thalia Anthony and Will Crawford. See Thalia Anthony and Will Crawford, “Northern Territory Indigenous Community Sentencing Mechanisms: An Order for Substantive Equality” (2013/14) 17 Australian Indigenous Law Review 79.