Magistrates Court (Nunga Court) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:11): Obtained leave and introduced a bill for an act to amend the Magistrates Court Act 1991. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (11:12): I move:

That this bill be now read a second time.

Today, I rise to introduce the Magistrate's Court (Nunga Court) Amendment Bill 2022. This bill implements the government's election commitment to provide the Nunga Courts with a formal and recognised place in the justice system. The Nunga Courts at the Port Adelaide and Murray Bridge Magistrates Courts are, respectively, the oldest and the second oldest specialist courts for sentencing for Aboriginal and Torres Strait Islander peoples in Australia.

The Port Adelaide Nunga Court began on 1 June 1999 and the Murray Bridge Nunga Court was established in January 2001. His Honour Magistrate Chris Vass SM was the inaugural magistrate in both of these courts and was instrumental in their establishment. I commend him for his pioneering work. There are currently three Aboriginal courts that operate on the Nunga Court model: the Port Adelaide Nunga Court, the Murray Bridge Nunga Court and the Maitland Narrunga Court, which commenced last year.

The Nunga Courts are an integral and effective part of the sentencing process, but they are not currently established by legislation. It is critical that Aboriginal elders and respected persons have a voice in the courts to facilitate culturally appropriate sentencing processes. In South Australia, Aboriginal people are grossly over-represented in the criminal justice system. This is not a new problem. The over-representation of Aboriginal people in custody was formally identified in 1991 by the Royal Commission into Aboriginal Deaths in Custody. Since that time, the proportion of the adult prison population who identify as Aboriginal has only increased. It is up from 14 per cent in 1991 to 24 per cent in 2022.

In 2021 in South Australia, the rate of Aboriginal defendants was 13.4 times the rate of non-Aboriginal defendants, and of those defendants whose matters were finalised, 48 per cent of Aboriginal defendants with a guilty outcome received custodial orders, compared with 34 per cent of non-Aboriginal defendants. This is unacceptable, and we must do better.

Now, more than ever, in light of these statistics, it is vital that we have dedicated supports and responses within the criminal justice system for Aboriginal and Torres Strait Islander people, like the Nunga Courts. Amongst other things, Nunga Courts provide an important opportunity for Aboriginal and Torres Strait Islander communities to participate in the sentencing process and help build trust in the criminal justice system.

As a longstanding feature of our justice system for over 20 years, it is time the Nunga Courts receive the formal recognition they deserve. To that end, this bill will deliver on the government's election commitment to provide a legislated basis for the Nunga Courts by amending the Magistrates Court Act 1991 to establish the Nunga Courts as a division of the Magistrates Court, known as the Nunga Court division.

This bill provides a Nunga Court division with jurisdiction to determine and impose sentences for offences heard and decided within the criminal division of the Magistrates Court, where the defendant is an Aboriginal or Torres Strait Islander person, has pleaded guilty to the offence and has applied to be sentenced for the offence in the Nunga Court. In considering an application to be sentenced in the Nunga Court division, the bill provides that the court should grant the application, except where the court considers it would be inappropriate to do so.

In sentencing the defendant, the Nunga Court must be assisted by one or more persons who are regarded by the defendant, and accepted within the defendant's Aboriginal or Torres Strait Islander community, as an elder or respected person or a person qualified to provide cultural advice relevant to sentencing the defendant. This will ensure that Aboriginal or Torres Strait Islander elders or respected persons have a voice in the sentencing process.

There is scope for the Nunga Court to be assisted by any other person the Nunga Court considers appropriate. This bill requires the Nunga Court to take steps to ensure that any proceedings are conducted as expeditiously and with as little formality as possible and in a way that is likely to be understood by everyone, including the defendant, their family and any other member of the Aboriginal or Torres Strait Islander communities. In addition, the bill sets out the purposes of the Nunga Court, which are to:

include members of the Aboriginal and Torres Strait Islander communities in the sentencing process;

provide an opportunity for Aboriginal and Torres Strait Islander defendants, magistrates, Aboriginal and Torres Strait Islander advisers and other participants in the sentencing process to discuss the offending, sentencing and criminal justice system; and

increase the confidence of Aboriginal and Torres Strait Islander communities in the criminal justice system.

Importantly, the bill provides that when the Nunga Court division of the Magistrates Court is sitting, the court will be known as the Nunga Court or any other name that may be assigned to the court by the Chief Magistrate. This is to enable the Nunga Court to be known by a name that is culturally appropriate for the place in which it is sitting. Before assigning another name to that court, the Chief Magistrate must consult with Aboriginal and Torres Strait Islander justice officers and any other persons or bodies recommended. There is also scope for the Chief Magistrate to consult with other bodies, as appropriate.

Significant consultation was undertaken through the development of this bill. The stakeholders have included the Chief Magistrate, the Hon. Mary-Louise Hribal, with the assistance of Magistrate Paul Bennett; the Chief Justice, the Hon. Chris Kourakis; Judge of the Youth Court, Judge Penny Eldridge; State Courts Administrator, Penny Croser, on behalf of the Courts Administration Authority; Dr Robyn Layton AO QC, Chair of Justice Reinvestment SA; the South Australian Aboriginal Community Controlled Organisation Network (SAACCON); the Aboriginal Legal Rights Movement (ALRM); Family Violence Legal Service; the Law Society of SA; the Legal Services Commission; and Tiraapendi Wodli at Port Adelaide.

A significant part of the consultation process was a roundtable discussion at the Port Adelaide Magistrates Court, where I met with a whole host of Aboriginal elders and respected persons, as well as Aboriginal justice officers and other representatives from the Courts Administration Authority.

I want to thank everyone who was involved in that process, and I want to acknowledge the consultation being facilitated by Mr Aaron Zammit, manager of the Aboriginal programs within the Courts Administration Authority. I would like to sincerely thank Aaron for all his work on this consultation.

The Magistrates Court session that was held was incredibly important and productive, where I had the firsthand opportunity to hear from those who have worked in the Nunga Court for many years working with Aboriginal people in the sentencing process, and has contributed valuable insight into how this bill would best protect the existing court.

I would also like to make special mention of and a give a special note of thanks to Aunty Yvonne Agius, who was at that session and has been involved with the Nunga Court since it first commenced, playing a very significant role in the lives of many Aboriginal people.

This bill will protect and strengthen our existing Nunga Courts by ensuring they have a formal and recognised place within our justice system, and that there are appropriate supports and responses within the justice system for Aboriginal and Torres Strait Islander people. I commend the bill to the chamber and seek leave to have the explanation of clauses inserted without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Magistrates Court Act 1991

3—Amendment of section 3—Interpretation

This clause amends section 3 of the principal Act to insert and amend definitions relevant to the measure.

It also provides that the Court will be known as the Nunga Court, or another name assigned by the Chief Magistrate, when sentencing an Aboriginal or Torres Strait Islander person in the Nunga Court Division of the Court. The Chief Magistrate must undertake consultation before assigning another name to the Court.

4—Amendment of section 7—Divisions of Court

This clause amends section 7 of the principal Act to include the Nunga Court Division as a Division of the Court.

5—Amendment of heading to Part 2 Division 2 Subdivision 3

This clause amends the heading to Part 2 Division 2 Subdivision 3 of the principal Act to add a reference to Aboriginal and Torres Strait Islander Elders and Respected Persons.

6—Insertion of section 7C

This clause inserts new section 7C into the principal Act to provide that Aboriginal or Torres Strait Islander Elders or Respected Persons or persons qualified to provide relevant cultural advice must (and any other person the Court considers appropriate may) assist the Nunga Court by providing advice on Aboriginal or Torres Strait Islander society and culture or any other matter the Court considers appropriate.

7—Insertion of section 9AA

This clause inserts new section 9AA into the principal Act to set out the purpose, jurisdiction and procedures of the Nunga Court.

Debate adjourned on motion of Hon. L.A. Curran.