White
Fella's Justice Gets A New Hearing
Source: The Age (Australia) ─ 29/7/00
`We're
trying to divert Tony to the drug court,' says the
magistrate. A small Aboriginal woman, whose son
is in trouble again, sits at the bar table at Adelaide's
Nunga court, next to her daughter and a grandson,
three or four years old, who stares at the courtroom
through the back of a chair. A woman elder from
the Aboriginal community is next to the magistrate.
`Are
you happy with that?' Port Adelaide magistrate Chris
Vass asks Tony's mother. `Because drugs are the
problem, aren't they? If he keeps this up, he'll
end up in prison and we all know there are more
drugs in there than outside.'
Tony,
who is on remand for a series of offences, including
breaking and entering, larceny and resisting police,
is then brought in and sits down. His head is partly
shaven and his feet drum nervously on the floor.
`You
should give the drug court a try,' Vass tells him.
`But there's no good doing it, mate, unless you
do it. This is your chance to prove yourself, eh?'
Tony
listens intently as the magistrate says his girlfriend
has been accepted into a drug-diversion program
and it is likely he will be, too.
`I
don't think you're a criminal inside yourself,'
Vass says. `Get off the drugs and you can get out
of the crime.'
Tony
agrees that if he gets into the drug court, he will
still visit Vass once a month, for a chat. `I'll
do that,' Tony says.
`I
mean every month,' the magistrate counters with
a warning look. `If you don't come, I'm going to
assume you're not going to be doing the right thing.'
Tony
turns and hugs his mother before being led back
into remand. `It's in Tony's interest, and in the
public's interest, to get him free of drugs,' Vass
says. `All his criminality has been associated with
drug-taking.'
This
informal courtroom procedure is practised every
fortnight in a unique Aboriginal court at Port Adelaide
created by and presided over by Chris Vass. Before
Vass was a magistrate, he worked in Papua New Guinea
for 15 years. That got him thinking about the interaction
between Western and indigenous law and culture.
Aboriginal people are typically over-represented
in Port Adelaide's courts, and he felt there was
no better place to be innovative than at home.
Since
it began in July last year, outside interest has
been building in the Nunga court, the regional Aboriginal
name given to it by the local Aboriginal community.
Western Australia is carrying out a feasibility
study, and Victoria, which made a commitment to
explore the idea in its Aboriginal Justice Agreement
released in May, is keen to model a Koori court
along the same lines.
Vass
was careful in the way he adapted his court because
the common law system of justice has rigid rules
about court procedures. But there are no rules,
only tradition, behind the notion of putting a magistrate
at the most elevated point of a court. In the Nunga
court, Vass sits in front of, or at, the bar table
and everyone else sits around. `It's at eye-level
and it's less intimidating,' he says.
Nobody
has to rise to speak and the requisite bow to the
magistrate when entering or leaving a sitting court
has been waived. Aboriginal people rarely stand
up and talk, says Vass; their way of doing things
would be to sit on the ground.
But
the most substantial difference is in the court
procedure that gives anyone the right to speak on
whatever subject they choose. Defendants can discuss
their past or their future, why they did things
and what they can do about it. Their families offer
their views and community members can have a say.
One
of the great frustrations for Aboriginal people,
Vass says, is that they see courts as a place to
go to be locked up, not listened to. Lawyers might
say things the defendant felt should not be said
and leave out what goes to the heart of what happened.
`They
say things like, `I haven't been caught, but I have
done things before that were bad', Vass says. `Or
they might say, `Well, I've been smoking dope every
night'. A lawyer will never tell me that.'
Such
contexts are used to shape sentencing. When he can,
Vass will refer defendants to drug programs or counselling
rather than prison.
`You
probably need some counselling to help you not be
so angry,' Vass tells Sharon who is 18, but looks
younger. She stands before him, silent and sullen,
charged with assaulting her mother, whom she has
been forbidden to see.
`We're
setting this young lady up for disaster,' he says
before altering her bail conditions so she can at
least phone her mother and ask her to visit.
Sometimes
he will defer sentencing for a year to see what
changes a person is willing to make, but he insists
his court is not the soft option. Last year a young
man was up on a serious offence and they had a good
talk. `I asked him, `What sort of penalty to you
think you should get?' and he said, `Jail, you should
put me in jail'. I said: `Well, yes, I think I will,'
and he said: `That's OK, at least you've listened'.
He was a lot happier than if he had been standing
in the dock and his lawyer had said something.'
The
court is open to any Aboriginal person pleading
guilty to offences in the Port Adelaide area. The
court cannot handle trials or any sitting in which
the crime is contested. Still, every second Tuesday,
up to 40 cases can go through. Its impact on recidivism
is so far only anecdotal, but at least the standing
of the court has been raised among Aboriginal people.
The elders who join the proceedings have no delegated
powers, but can give advice on sentencing. Their
involvement gives the process tacit support.
`Sometimes,
after sentencing someone, the person next to me
will say: `Right brother, now I know you, you've
been given a chance and I'll be keeping an eye on
you out there in the community',' Vass says.
After
11 years at Port Adelaide, Vass has been transferred
to the court in Holden Hill, in Adelaide's southern
suburbs,
where he will introduce a second Nunga court. He
expects the one at Port Adelaide to continue to
thrive.
`It's
a bit personality driven, something I've started
and done, which in a sense has relied on me─which
is bad,' he says. `But others are starting to take
over. It is starting to happen.'
