Protecting and Advocating for our Aboriginal Clients’ Culture and Identity Through Informed Legal Representation

All First Nations clients deserve access to culturally appropriate legal services that make them feel safe, respected, and listened to. This principle is fundamental to the profession, as well as the current and future legal framework of Victoria. 

At Gallant Law, we believe in protecting, and advocating for, Aboriginal clients’ culture and identity during all stages of legal representation. Gallant Law’s Strong Spirit Justice Initiative aims to improve legal outcomes for our First Nations clients who interact with the justice system. The Strong Spirit Justice Initiative fosters understanding, healing, growth and support across four areas:

1. Legal representation for Aboriginal and Torres Strait Islander clients in criminal law and family violence proceedings.
2. Informative and practical workshops hosted by key speakers and Elders to consistently and frequently educate and train legal professionals about cultural ways and trauma informed practices; gain practical skills and useful resources on how to work with our First Nations people in the legal system. 
3. Mentoring and opportunities for Aboriginal and Torres Strait Islander law students and lawyers.
4. Educating the community as to the importance of rehabilitation and prevention of crime to create safer communities and break the cycle of criminal behaviour.

Throughout this article, we will explore the various initiatives and frameworks that support a statewide and national push for greater cultural representation in the legal system.

Yoorrook Justice Commission Findings

Led by the truth telling commission, the Yoorrook for Justice: Report into Victoria’s Child Protection and Criminal Justice Systems was tabled to the Victorian Parliament in September. Following an extensive inquiry, the report “details extensive systemic injustice, racism, discriminatory laws and policy failures that have, and continue to, cause harm to First Peoples.”

Due to the extensive nature of the findings, the Yoorrook Justice Commision has called on the State Government to transform the current criminal justice and child protection systems to address inherent and systemic injustices against First Peoples. 

The Koori Court

One of the most important frameworks currently in place is the Koori Court.

Koori Court’s origins began with the introduction of the Magistrates’ Court (Koori Court) Act 2002. This legislation was enacted with the objective of “ensuring greater participation of the Aboriginal community in the sentencing process of the Magistrates’ Court through the role to be played in that process by the Aboriginal elder or respected person and others.” Source: Magistrates’ Court (Koori Court) Act 2002 Act No. 27/2002.

The next steps  involved the foundation of the Children’s Koori Court to address the “over-representation of young Koori people in the criminal justice system; and the County Koori Court which was established in 2008.” 

With the participation of Elders and Respected Persons, the Koori Court aims to reduce the number of repeat offenders and the number of Koori people sentenced to detention. While the sentencing outcomes remain the same as the mainstream court system, a different court process is in place.

The Koori Court Process

During a hearing, the people in attendance are as follows:

• The Magistrate or Judge
• Elders and Respected Persons
• A Koori court officer
• A prosecutor
• The defence lawyer 
• The client’s family or support person
• Court Services case workers and Koori owned and operated agencies and support services 

How the Process Works

Indigenous people charged with a criminal offence first must elect to go to Koori Court, consent to the jurisdiction, and plead guilty to the offending (often after a lawyer has negotiated the charges and/or factual summary). Once a time is set for the plea hearing, the process will be conducted in three stages:

Step 1: Plea of Guilty Entered or Formal Arraignment

Step 2: Sentencing Conversation

This process differs from the usual plea hearing. A conversation is conducted in a specially designated courtroom with as little formality as possible. Here, the participants talk in plain English rather than technical legal language.

The conversation begins with an Acknowledgement of Country and the Magistrate or Judge explains to the accused that the court respects Aboriginal people and culture, and that the room has been smoked. The participants in attendance (listed above), are introduced and explain their role. After this point, participants begin a discussion of the offending behaviour.

Step 3: Formal Sentence

General sentencing procedures and factors are followed.. Sentencing can often occur on another day, which depends on the various complexities and nuances of the case being heard.

Eligibility

To be eligible for the County Koori Court, individuals must meet certain criteria. This includes:

Indigenous Identity

The accused must identify as Indigenous or be recognised as such by their community.

Verification of Indigenous identity may be required during the eligibility assessment.

Consent to Koori Court Jurisdiction

The accused must willingly elect to have their case heard in the Koori Court.

Consent to the jurisdiction of the Koori Court is a prerequisite for proceeding with the process.

A Guilty Plea

The accused must enter a plea of guilty to the charges brought against them.

Referrals

Individuals seeking participation in the Koori Court process can follow these steps for referrals:

Contact a Law Firm for Legal Representation

Consult with a legal representative who is familiar with the Koori Court process.

Legal counsel can provide guidance on the eligibility criteria and the steps involved in participating in the Koori Court.

Complete Eligibility Assessment

Work with legal representatives to complete an eligibility assessment to ensure that the accused meets the criteria for Koori Court participation.

This assessment may include verifying Indigenous identity and obtaining the accused’s consent to the Koori Court jurisdiction.

Completing a Referral Submission

Once eligibility is established, legal representatives can submit a referral to the County Koori Court.

The referral should include relevant details about the accused, the charges, and the willingness to plead guilty.

Prepare for the Koori Court Process

Upon acceptance of the referral, the accused’s legal team will prepare plea materials and submissions to mitigate sentences and best represent their client. 

Whether you need representation, advice or assistance with the referral process, you are in capable hands with Gallant Law. You can contact our law firm offices in Geelong, Melbourne or Warrnambool for any enquiries related to Koori Court. 
We are available 7 days a week. Call or text 0403613515 for urgent matters. Or reach us via email: welcome@gallantlaw.com.au

Disclaimer: Legal Information and Advice

The information provided on this blog is for general informational purposes only and should not be construed as legal advice. The content is not intended to create, and receipt of it does not constitute, a solicitor-client relationship. Readers should not act upon this information without seeking professional legal counsel.