Legislative Council: Thursday, October 20, 2022


Magistrates Court (Nunga Court) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2022.)

The Hon. C. BONAROS (15:46): I rise on behalf of SA-Best to speak on the Magistrates Court (Nunga Court) Amendment Bill 2022. The Nunga Court at Port Adelaide Magistrates Court, as we have heard, was the first culturally appropriate sentencing court to be established in Australia, commencing operation in 1999, and has since been expanded to include Murray Bridge and Maitland courts. It was pioneered by Magistrate Chris Vass, who acknowledged an overwhelming need for a specialist court to oversee sentencing, with the involvement of elders and respected persons from the Aboriginal community.

The court operates, as we have heard, in a less formal setting, with the aim of reducing offending, building and strengthening relationships with community, and providing holistic outcomes where appropriate. I commend everyone involved in establishing and paving the way for the establishment of that jurisdiction in South Australia as a first.

From data provided by the Attorney-General's Department, we know that the Port Adelaide Nunga Court dealt with 541 defendants in 2021-22, the Murray Bridge Nunga Court dealt with 54 and the Maitland Nunga Court dealt with five defendants. In order to be eligible, the defendant must be willing to plead guilty to a charge which can be finalised in the Magistrates Court.

I note that in jurisdictions with similar models there are exclusions that apply for certain types of offences. For example, in New South Wales sexual offences, child pornography offences and offences involving drugs and firearms are explicitly excluded, in the ACT and Victoria sexual offences are explicitly excluded.

SA-Best fully supports enshrining the Nunga Court via legislation to ensure its continuation into the future and as an acknowledgement to the work that has been done by that court in this jurisdiction as a first. In fact, we are so supportive of what is being proposed we would like to see the court expanded into the Youth Court, particularly for child protection matters involving Aboriginal and Torres Strait Islander children, but also in terms of the criminal jurisdiction of that court. There are communities that are crying out for a seat at the table when it comes to consideration of these matters, particularly in relation to DCP.

Some members may recall that last year I hosted a forum at Parliament House, where Nunga Babies Watch and the Grannies Group presented their stories and a carefully considered wish list of structural and systemic change. I have to say that the elders who attended expressed their sincere and deep gratitude for the opportunity to speak to members of parliament and their staff about the work they have done in this space.

I think the only disappointment on their part expressed to me was that it took as long as it did for them to have that audience here at Parliament House in the way that it was. I am grateful for everyone who attended. All we did was facilitate that forum to be hosted. I hope the Attorney and the government are open and willing to facilitate further such discussions here at Parliament House, where the views expressed by them can continue to be expressed.

They also presented us—and the Attorney attended—with some information that they have prepared for their broader communities in terms of where to go for help and what to do when DCP is involved and children have been removed from Indigenous families. They likened the exorbitant number of Aboriginal and Torres Strait Islander children in care to a second stolen generation. After hearing the harrowing stories they told and continue to tell and the lived experiences they continue to share with us, it is increasingly hard not to agree with that sentiment.

The involvement of elders and respected persons in these matters, with a focus on Aboriginal and Torres Strait Islander child placement principles, is one thing that would vastly improve outcomes for children who find themselves the subject of proceedings, and their families, and is something we need to be considering urgently, in my view. I acknowledge that there are measures in place, but more needs to be done to ensure a streamlined and consistent approach in terms of how we deal with these matters.

Establishing an independent Aboriginal-controlled panel to review DCP decisions and ensure accountability as part of that Youth Court would be a very good start. I acknowledge also the Attorney-General's willingness to consider improvements to the current structures and systems in place along the lines that I have outlined. I note for the record that we have had preliminary discussions with the Attorney-General, and I am encouraged by his commitment to considering further expanding the scope of the Nunga Court in this space.

My experience in the jurisdiction has highlighted a number of issues in that jurisdiction that I am keen to see addressed. Some of those processes are ad hoc in nature, and I think streamlining and formalising them would not only benefit those children who are involved in those processes but also address some of the very serious systemic concerns that remain outstanding and continue to be raised with us. Having Aboriginal elders involved in these discussions and having changes as a result is absolutely critical. These concerns were raised with the previous government, and I genuinely hope that the Attorney is committed to addressing them appropriately.

I do have a number of issues that I would like to raise during the committee stage of the debate, issues that I have raised with the Attorney and would like placed on the record more formally, but once again I commend the government for taking this very important step, cementing, if you like, and legislating the Nunga Court in our statute books. With those words, I look forward to the committee stage debate of the bill.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:54): I would like to thank those who have contributed in their second reading speeches to what I think is a very important bill. It is, in my view, a small but significant measure that we are taking to address the significant disadvantage so many Aboriginal people face. I thank the Liberal Party, the Greens and SA-Best for their support and contribution to this bill, but I want to spend a little bit of time particularly addressing the contribution of the Hon. Sarah Game in relation to this bill.

I appreciate the recognition the Hon. Sarah Game made about the dimension of the problem we are facing. The member is right when she said:

It is unacceptable that Aboriginal communities across SA are not thriving and are over-represented in the judicial system.

But the honourable member went on to say that she would not be supporting this legislation, a legislation that is specifically targeted to help Aboriginal people overcome that exact disadvantage.

This goes to the very reason I am involved in politics: helping Aboriginal people overcome this disadvantage. In my view, the levels of disadvantage and discrimination that so many Aboriginal people face in this state and this country is the greatest stain on us as a society. Some in the community, including the contribution made by One Nation, see that specific measures for Aboriginal people are not warranted. I could not disagree more.

It is the laws of this parliament, and the parliaments of all states and territories—and the colonies that preceded them in decades and centuries gone by—that have directly led and contributed to these levels of disadvantage. It is the laws of this parliament, in particular, that must contribute to helping overcome this disadvantage.

I provide an example of why I think we have this moral obligation to implement laws in this state that create special measures to help overcome this level of disadvantage. Take for example the policies of forced removal of Aboriginal children in years gone by, the stolen generations. It is this and other parliaments that created the environment, the institution and the laws that allowed, endorsed and encouraged these barbaric practices to occur.

Yet, occasionally, people hurtfully deny the policies of the stolen generations and claim along the lines that it was all done for the benefit of Aboriginal people. Such lies are hurtful and are easily dismissed when you look at the comments of the time, comments made by people with titles such as so-called Protector of Aborigines. If you look at a quote from the then Protector of Aborigines, Dr Cecil Cook of the Northern Territory in 1927, he said about the policy of forced removal of Aboriginal children:

Generally by the fifth and invariably by the sixth generation, all native characteristics of the Australian Aborigine are eradicated. The problem of our half-castes will quickly be eliminated by the complete disappearance of the black race, and the swift submergence of their progeny in the white.

These are people whose roles and actions were created, sanctioned and condoned by parliaments of this nation. The very deliberate policies enabled by parliaments in the past were in a desire to wipe out an entire race of people, to exterminate Aboriginal nations on this continent. These policies, as I said, were put in place, enabled and sanctioned by parliaments of the past.

So yes, I think this parliament should—I think it has a moral obligation to take special measures to help overcome the disadvantage that these parliaments across our nations have created in the past. To not do what we can to help overcome this disadvantage I think fails a moral test of what we are here to do.

I would welcome the Hon. Sarah Game, the representative of One Nation in this chamber, to reconsider her opposition to this bill. This bill is one measure, albeit a small measure but one measure that I think we can take to help overcome this disadvantage. The way the honourable member has spoken and defined some of the issues that she is interested in I think does her some great credit. She has spoken about the hardship and the discrimination that certain elements of our community have faced, and she has shown she is willing to take action in a practical legislative sense to help overcome that.

I would encourage the honourable member to reflect and to see this as another way that she can do that in terms of helping a specific part of our society overcome the disadvantage that in fact has, to a very large degree, been contributed by the very parliaments of the past that we are now members of.

I think it is important. It is a small but important contribution in what we do. As I have said, I think the honourable member has surprised many in terms of her thoughtful contribution and her desire to protect those who are disadvantaged in society. I will say that that stands in stark contrast to the federal One Nation party. The creator of One Nation federally, Pauline Hanson, is a hurtful racist.

Comments that have been made by Pauline Hanson have hurt Aboriginal people all over Australia—comments Pauline Hanson has made about Aboriginal people like, 'They’ve got to start doing something for themselves, first off, if they start cleaning up the environment they live in.' On school attendance, Senator Pauline Hanson said, 'Whose fault is that? Lazy parents. You can't blame the whites when it's your own negligence.' On Noel Pearson and Jason Yanner, Senator Pauline Hanson said, 'These people aren't helping close the gap; they're simply riding the gravy train.' They are extraordinarily ignorant, hurtful and racist comments by Senator Pauline Hanson.

On the Voice to Parliament being proposed, Senator Pauline Hanson has said, 'This can only be about taking power from whitefellas and giving it to blackfellas. This is Australia's version of apartheid.' These are outrageous, racist and hurtful comments. On Closing the Gap, Pauline Hanson said it is 'complete rubbish…as far as I am concerned, it's a joke.' Pauline Hanson went on to say, 'Closing the Gap is the marketing term used by politicians and bureaucrats so they can feel good about themselves and get in front of TV cameras.'

Only recently, Senator Pauline Hanson stormed out of the Senate chamber in Canberra when an Acknowledgement of Country was being recited. We saw recently, in regard to the wishes of traditional owners, the Pitjantjatjara people of the central western desert region, and stopping people climbing Uluru, Pauline Hanson literally trampled on the wishes and beliefs of traditional owners by trying to march up Uluru before the walk was closed, somewhat ironically getting stuck halfway up. As I said, Pauline Hanson is a racist and demeans not just Aboriginal people but all of us in the comments she makes.

As I said earlier, I think the Hon. Sarah Game, in the words that she has used, in the issues that she has fought for, in the committees that she has set up, in the legislation that she has proposed, has done herself great credit in terms of considering the needs, the feelings of disadvantaged and minority groups in South Australia, and I would encourage a rethink on the opposition to a bill that is aimed at righting in a small way some of the injustices of the past, some of the disadvantages that very parliaments like this one have created.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: As I have said, I acknowledge and support fully and wholeheartedly formalising the existing arrangements the Attorney has outlined, especially given his impassioned contribution just now. I would like to ask the Attorney, in terms of the comparison with other jurisdictions and for our benefit, was any consideration given to specific legislative exclusions? I note that we are just formalising what exists, but given those models that exist in other states, was consideration given to any legislative exclusions when it comes to sex offences in South Australia, bearing in mind that we are talking about a limited scope in terms of what sex offences could potentially be included within the scope of the bill?

The Hon. K.J. MAHER: I thank the honourable member for her question. She is right: this bill sought, if you like, to legislatively protect and regularise the operation of the Nunga Court in South Australia when it was established in Port Adelaide in 1998 and soon after in Murray Bridge. It was the first of its type anywhere in Australia, the sentencing court in South Australia.

On a number of occasions I have had the opportunity to sit at the back of the court and just watch how effective a Nunga Court is and the benefits it provides. In this particular bill we did not consider doing anything more or less than what the Nunga Court has done here for 25 years, but we will be happy to have a look at how other jurisdictions operate. I know we looked at Victoria after we established a Nunga Court, or legislated for a Nunga Court. I believe New South Wales—I am getting a nod—has a legislated regime for the Nunga Court.

In terms of sexual offences, overwhelmingly sexual offences are indictable offences that are not dealt with by the Magistrates Court. I have not been able to determine if sexual offences have ever actually been dealt with in the Nunga Court, which requires a guilty plea. In practice, and as is reflected in the bill, the court has the discretion not to deal with any matter that the court chooses not to deal with.

It would be unlikely that there would be serious sexual offences dealt with by way of a guilty plea in the Magistrates Court. I do not have information; I do not think it was on a list of the top 10 most common offences that are dealt with in the Nunga Court, but I am happy to have a look at that and see what other jurisdictions do. However, as I said, given that almost all sexual offences are not dealt with in the Magistrates Court because they are indictable offences, and the fact that there is discretion not to hear it, it is not something we considered would happen—if it happens at all. However, it is something we are happy to have a look at.

The Hon. C. BONAROS: Thank you. It is important to place on the record, and perhaps just ask the Attorney, when we are talking about those offences we are talking about indecent assaults that deal with people other than people aged under 14, providing a service to a person with cognitive impairment, filming and sexting offences which can be finalised in the Magistrates Court. I also understand that the Magistrates Court wishes to retain that discretion they have.

I do not expect this now, but if you could take on notice to get some figures on how many sex offences that I have just outlined have actually been finalised in the Nunga Court over the duration of its existence that would be useful.

The Hon. K.J. MAHER: I am happy to take it on notice. I am not certain I will be able to stretch back to records from 1998, but to the extent we are able to I am happy to provide the honourable member with that information.

The Hon. C. BONAROS: Thank you. If the Attorney could also place on the record any future expansions of the Nunga Court in other Magistrates Court locations.

The Hon. K.J. MAHER: As I said, the Nunga Court was initially established in 1998 in Port Adelaide. Not long after that a Nunga Court was established in Murray Bridge. In the last few years I think an operation of the Nunga Court has been established in Maitland. I know that in years gone by, a court—I think it was called an Anangu court—might have operated on the West Coast in Yalata. The more recent Nunga Court on Narungga country in Maitland is certainly one that has been established in recent times. I would like to hope that we will see more established as time goes on.

One of the provisions in this bill—which may be thought of as a small thing, but it was quite important when I spent a couple of hours with Aboriginal justice officers and elders who sit on the Nunga Court out at the Port Adelaide Magistrates Court—was the actual naming of the court. There was a desire that we respect the historic nature of what was done and refer to the court as the Nunga Court but also an acknowledgement that, particularly in northern or western areas of South Australia—although most South Australian Aboriginal people refer to themselves and each other as nungas, hence the name Nunga Court—on the Far West Coast and in the Far North, Anangu is a term that is often used.

I think many people consider themselves nungas but do not use that language, so the legislation allows for a name other than the Nunga Court to be used if that is what the desire is. I can imagine on the Far West Coast or in northern South Australia you would see perhaps an Anangu court set up rather than a Nunga Court, if there was future expansion.

The Hon. C. BONAROS: Turning now to the specific issues that we have raised with the Attorney in relation to this bill, and not seeking to amend this bill in any way in relation to the Youth Court jurisdiction, currently there are about one in 11 Aboriginal children in state care in South Australia. We note that the national Closing the Gap aims to reduce that rate of Aboriginal and Torres Strait Islander children in out-of-home care by about 45 per cent by 2031, so are we committed to undertaking to consult and expand the principles of the Nunga Court into the Youth Court for child protection matters and formalising those arrangements, and also in relation to revisiting the criminal jurisdiction of the Youth Court?

The Hon. K.J. MAHER: I thank the honourable member for her question. I have had discussions with the honourable member and I know she has had discussions with my office about this particular issue. The short answer is yes. The rate at which Aboriginal children are removed from their parents is unacceptably high. The honourable member referred to it, I think, in her second reading speech as a new stolen generations.

Knowing what we know now, to allow it to continue I do not think is a defendable position, so anything that we can do, we need to do. There are principles that are in place in the Children and Young People (Safety) Act 2017 that contain measures that seek to ensure the care and protection of children and Aboriginal children when there are child removal matters in the Youth Court, but I absolutely will see what further we can do so that the provisions that are there are being adhered to as they should be, and what further measures could take place.

In terms of the criminal jurisdiction for young people, I think it is a very good idea to review whether that may be appropriate in the Youth Court as well. As I said earlier, I have had the great privilege and benefit of sitting at the back of the court at Port Adelaide a couple of times. Particularly when you see younger blokes, younger male Aboriginal defendants, pleading guilty and having to sit there and interact with their elders, that is a lot harder I think than a lot of these young Aboriginal blokes having to just cop a fine or a prison sentence.

They have to culturally be in front of their elders and discuss what they have done and how they can turn their lives around. I think it would be exceptionally worthwhile to see how that could be expanded from the Magistrates Nunga Court perhaps to the Youth Court, which is a division of the Magistrates Court, although this is not what this bill is aimed at.

The Hon. C. BONAROS: I will come back to the point the Attorney has just made, but as part of that consultation process, is the Attorney committed to meeting with other stakeholder groups, including Nunga Babies Watch and the Grannies Group, to ensure that any consultation that does occur is appropriate in light of the representations that have been made?

The Hon. K.J. MAHER: I will absolutely make that commitment for the Grannies Group and the Nunga Babies Watch group, whom I have met, with the honourable member and on a number of occasions in years gone by. The dedication of many mainly senior elders, Aboriginal women, in this area is quite remarkable, and it would be dismissive not to include them heavily in any consultation.

The Hon. C. BONAROS: Given the comments the Attorney made earlier, it would be useful for the record to understand why it is that the equivalent sentencing court in the Youth Court, which operated between 2017 and 2020, was discontinued in South Australia—the reasons for that and whether that had anything to do with a lack of referrals or any other matter that the Attorney might be able to shed some light on.

The Hon. K.J. MAHER: I thank the honourable member. I am advised that it was not continued due to a lack of referrals. I suspect that goes not to a need for it but to a recognition or knowledge of its availability.

The Hon. C. BONAROS: One of the other questions we had specifically in relation to the criminal jurisdiction in that regard was whether there can be, as part of that process, a consideration of, obviously, a focus on rehabilitation services as opposed to criminal penalties.

The Hon. K.J. MAHER: I thank the honourable member for her question. I think it is a good idea to look at that, as I have spoken about in this place, in the investigations that not just South Australia but all jurisdictions are doing in relation to the minimum age of criminal responsibility. Looking at those therapeutic and family interventions is a focus rather than a criminal justice sanction.

The Hon. C. BONAROS: I note that the Human Rights Committee of the Law Society has indicated its support for this bill, with the express proviso that the provisions are subject to an independent review to assess effectiveness after a certain period of time. Are there plans for such a review to be conducted and, if so, what is the time frame?

The Hon. K.J. MAHER: I thank the honourable member for her question. There are no plans to conduct a review of how these provisions are working, on the basis that this regularised and protecting legislation has been operating now for 25 years. Magistrate Vass, the other magistrates who have been involved, the Aboriginal justice liaison officers, the elders who have been involved—Aunty Yvonne Agius is a prime example of who I think was involved from the very start and is still involved in the Port Adelaide Nunga Court—have worked very hard over time to develop change and adapt how the Nunga sentencing court has worked.

It is common for new practices and procedures to have a review clause to look at their efficacy, to look at what can be improved, but as this has been refined over 25 years that is the reason it is not included in this one.

The Hon. C. BONAROS: Perhaps I can clarify: it is not so much the operation but potentially enhancing the operation of that jurisdiction that we are specifically interested in, so if there are other ways of enhancing the jurisdiction, given that we are now dealing with legislation as opposed to a process that was formal but not prescribed previously, or other improvements that could be made via legislation to enhance the operation of that and, if that is appropriate, I suppose that is where a review would fit in.

The Hon. K.J. MAHER: Certainly, if changes can be made—we talked about the possible extension to other geographical locations in South Australia—I know that is something that many users of the system, particularly the ALRM, have talked to me about. I do not think this requires a formal review process. I am in absolutely no doubt that the ALRM will let me know if anything in particular needs changing. Quite a number of groups have a significant genuine interest in this reform. I mentioned Aunty Yvonne Agius.

We took this as an election commitment, but it was not one where we were sitting around a table thinking of policies and we came up with this. This came out of a visit, I think, the Deputy Premier and I made to a couple of groups and it was something that was requested. We were very pleased to be able to include that as part of our commitments, and I am very proud to be able to be making these changes. Policies are not always developed like that, but it was a community-driven initiative put to the then opposition that we are now enacting here.

The Hon. C. BONAROS: I am not going to go through all of the undertakings that we have discussed with the Attorney, but I would like him to place on the record some undertaking that he is committed to continuing those discussions and facilitating meetings, including meetings with Judge Eldridge, with a view to potentially implementing further changes and addressing the issues that have been raised with his office appropriately.

The Hon. K.J. MAHER: I am happy to give that commitment. There have been discussions, I think, most days of this week and last week with the Chief Judge of the Youth Court, both as it relates to those child protection matters but also the criminal matters that come before the Youth Court. I am happy to give that commitment and undertaking that we will continue to do that.

The Hon. T.A. FRANKS: I just wanted to raise one particular concern that I did touch on in my second reading speech, which is regarding the use of interpreters and feedback on point 10 of the Law Society's submission on this bill. Could the Attorney-General please respond to that concern raised by the Law Society with regard to the workings of the court, including interpreters from a procedural fairness point of view, and why that is not explicitly in this bill?

The Hon. K.J. MAHER: I thank the honourable member for her question; it is a good one. We know that where defendants do not understand the nature of proceedings, and in my experience where people often just answer yes to understanding, 'Yes, you have asked me the question,' rather than, 'Yes, I agree with the question,' it can lead to injustices occurring. There are provisions within the bill before us that seek to regularise what occurs at the moment. For example, clause 7(4)(c) requires that the proceedings are conducted:

(c) in a way that is likely to be understood and followed by such of the following persons as may be present…

(i) the defendant;

(ii) family members of the defendant;

(iii) any other members of Aboriginal and Torres Strait Islander communities.

Without being prescriptive about a must or requirement for interpreters, we see this as giving very strong reassurance and guidance that the proceedings must be understood, in this case, most importantly, by the defendant.

Clause passed.

Remaining clauses (2 to 7) and titled passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:23): I move:

That this bill be now read a third time.

Bill read a third time and passed.