Magistrates Court (Nunga Court) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 September 2022.)

The Hon. J.M.A. LENSINK (16:39): I rise to make some remarks in relation to this legislation, which establishes the Nunga Court as a division of the Magistrates Court. Nunga Courts allow defendants of Aboriginal and Torres Strait Islander communities who plead guilty to an offence or offences to involve representatives from their community in a discussion about the offending and sentencing.

A Nunga Court began in Port Adelaide on 1 June 1999. I think the Attorney-General at the time was the Hon. Trevor Griffin of blessed living memory. A Nunga Court was subsequently established at Murray Bridge in January 2001, which might have been when the Hon. Robert Lawson was AG, and at Maitland, named Narrunga Court, in 2021.

In relation to the particular clauses, as well as establishing the Nunga Court as a division of the Magistrates Court and providing for the purpose and jurisdiction of it, it will define the Nunga Court and an Aboriginal or Torres Strait Islander person for the purposes of the legislation. Notably, clause 6 of the bill will introduce a requirement that, in sentencing, the Nunga Court must be assisted by one or more culturally appropriate members of the Aboriginal or Torres Strait Islander communities that are relevant to the defendant and may also be assisted by other persons that the court considers appropriate.

I understand that a number of Aboriginal community-controlled organisations and Aboriginal communities have been consulted and support this recommendation, including the folk at Tiraapendi Wodli. The Liberal Party supports the bill.

The Hon. T.A. FRANKS (16:41): I rise today to speak in support of the Magistrates Court (Nunga Court) Amendment Bill 2022. This bill legislates a formal place for Nunga Courts in our judicial system, created as a result of the Royal Commission into Aboriginal Deaths in Custody. These courts have formed an important part of our legal system for Aboriginal people in this state since their formation in 1999.

The work of Magistrate Chris Vass must be noted. Through his consultation with Aboriginal community groups, the Aboriginal Legal Rights Movement, police and government, he initiated Aboriginal court days, where Aboriginal people who had pled guilty could have their matter heard in a court that was more culturally appropriate and the family and community of the accused were asked to actively participate.

The Nunga Court, from early in its formation, has been effective in increasing the participation of Aboriginal defendants in the court process. In the general Magistrates Court, the participation rate for Aboriginal defendants was around 50 per cent, whereas it was closer to 80 per cent for the Nunga Court. These are small changes, but these changes do have a big impact on participants. Everyone, including the magistrate, sits at the same level. An Aboriginal elder is seated next to the magistrate and is able to offer cultural advice on particular issues.

Importantly, family and community participation is encouraged and can help to have a lasting effect on the defendant, helping to give weight to the promises and assurances that they make during this process. We also know that defendants who go through the Nunga Court process compared to those who go through the general Magistrates Court process are less likely to receive penalties that lead to imprisonment, either directly or indirectly.

The Royal Commission into Aboriginal Deaths in Custody made clear that imprisonment should be the last resort. Nunga Courts have been shown to impose fewer fines and fewer losses of driver's licences, both of which have been called an 'indirect route to imprisonment for Indigenous people'. Keeping people out of prison, those who do not need to be there, is a benefit not only to that individual but to their community more broadly.

I would like to point out that this bill does not include the provision of interpreters. The Law Society's submission has advised that, for the purposes of procedural fairness, the bill should ensure that interpreters are available, if appropriate. This is not a new idea. The availability of interpreters to enhance the effectiveness and participation in the Nunga Courts is a point that has been made before.

The Royal Commission into Aboriginal Deaths in Custody specifically recommended that interpreters should be available in locations where many Aboriginal people appeared before the court. Surely, the Nunga Court meets that description. There is an over-representation of Aboriginal people in our justice system, a system that is not designed to be culturally sensitive and not designed to consider the input from those within the most affected communities.

Nunga Courts are by no means the definitive answer to the myriad issues faced by Aboriginal people entering our justice system, but this does offer a more accessible form of justice. It brings compassion to an otherwise unpleasant and alienating process. It means that justice is not 'just us', as many Aboriginal people have said to me. With that, I commend the bill.

The Hon. S.L. GAME (16:45): I applaud this government for its active and honest effort to improve health, safety and wellbeing programs for our South Australian Aboriginal community, and I acknowledge this community is affected by higher smoking rates, higher diabetes and greater incidence of alcoholism. This community, like others of disadvantage, is also connected to housing instability, family violence and in need of great scaffolding. It is unacceptable that Aboriginal communities across South Australia are not thriving and are over-represented in the judicial system.

The government put resources together for my office that demonstrated the values, benefits and outcomes of the Nunga Court system, and these did include solid results around reduced recidivism and improved understanding of offending actions, and there are aspects of the Nunga Court from which many South Australians would benefit in appropriate circumstances. There are several community groups experiencing generational disadvantage. They are born into ongoing poverty, suffer trauma and discrimination. There are pockets of electorates where fifth-generation unemployment is normalised, there are broken families, zero expectation for ongoing studies, family members are incarcerated—it does not matter what your racial, cultural or ethnic background is.

Unacceptably, a substantial portion of adults are functionally illiterate and many offenders would benefit from informalised and clearly explained proceedings. A sentencing court that instils the impact of their offence in a way that results in reduced levels of reoffending would be an important pursuit in any setting. By legislating this particular court we restrict its impact and ability to service our whole community, and all our community deserves access to the outcomes the Attorney-General has portrayed. I have also been approached by some members of the Nunga community who do not support legislation for a separate court system, so One Nation will not support this amendment bill.

Debate adjourned on motion of Hon. E.S. Bourke.