Alternative Law Journal
JENNY BLOKLAND[*] discusses the Community Court in Nhulunbuy.
Invoking the ‘Wisdom of Solomon’ is not fashionable in current legal problem solving. Although a risky judicial strategy, King Solomon’s celebrated decision to slice the subject child in half to determine which of the adversaries genuinely loved and wanted the child offered a telling and practical solution to the case. Decision making in the judicial space where two worlds collide throws up surprising questions that cannot always be answered using the usual tools of trade.
Last week at the Community Court session in Nhulunbuy, 12 people sat around the bar table, with another three or four observing or participating ‘through’ others to work out an appropriate sentence for TM, a young Yolngu man, charged with an assault on one of his wives, breaches of a restraining order and criminal damage of the Miwatj Health Clinic. The deliberative process was conducted in various Yolngu Matha languages, greatly assisted by Barnabi Wunungmurra’s interpreting and informed by family members of both the defendant and the victims. A plan was put forward and agreed to by the defendant and the victim’s aunty (on behalf of the victim) that TM would go to Calledon Bay (a ‘dry’ community), complete community work, receive counselling from family and community corrections, and not return to Nhulunbuy for the duration of the order save for special reasons to be agreed with Community Corrections. At the conclusion of the session I made that fatal legal error — asking one too many questions that I didn’t know the answer to: ‘Does anyone else have anything else to say or ask?’ The victim’s aunty asked me: ‘Which one of his wives will go with him to Calledon Bay?’ I told her that was not really something I could answer for her. I told her I understood she didn’t want her niece to go but I couldn’t make any orders on either of the wives. Mr Wunungmurra advised me that the order had a better chance of working if one wife went with TM. I regret that even though the process of Community Court gives the court much more relevant cultural information than the usual court process, I had nevertheless underestimated the strength of the relationships and the need of the participants to resolve aunty’s final question. I asked the families and the women concerned to try to resolve the issue themselves.
So much for Solomon.
At the time of passing the sentence, the CEO of the Miwatj Health Clinic told TM that he and his family would not be welcome at the clinic’s breakfast program until TM demonstrated respect for the clinic after breaking the clinic’s window. Various suggestions were made on how TM might demonstrate that respect. Clearly, contributions such as these to the sentencing process are useful, practical measures motivating people to take responsibility and providing greater confidence to the court that the risk of re-offending will be lessened. The combination of orders utilised in TM’s case are an example of outcomes that are common in the Community Court.
Community courts started in Nhulunbuy because about three years ago the respected Yolngu educator, linguist and community worker Raymattja Marika came into the Court’s Chambers stating that ‘down South’ there are Koori Courts, Nunga Courts, circle sentencing and that the Yolngu needed a ‘Yolngu Court’. Being a new magistrate, I wasn’t sure if I could, with any authenticity, preside in a court called a ‘Yolngu Court’. With other developments occurring in Darwin (our Chief Magistrate came to an agreement with Yilli Rreung Council to trial ‘circle sentencing’ in Darwin and Nhulunbuy and make some funds available for the process), we settled on ‘Community Court’. Many readers will be familiar with restorative justice principles being utilised in circle sentencing processes. While it is early days in the development of the process, there are some features of the Community Court in Nhulunbuy that add a layer of complexity and interest compared with similar processes operating elsewhere.
First, Community Courts in Nhulunbuy service North East Arnhem Land, primarily the Yolngu, a distinct cultural group famous for their highly defined laws, social obligations, customs and culture expressed in painting and music. Unlike many parts of Aboriginal Australia where regrettably those laws, social engagements and traditional practices are diminishing, (save for some relatively recent changes due to social factors), traditional Yolngu law and culture is widely practised and primarily governs people’s lives. Importantly, the challenge for engagement by the courts of the general legal system involves adopting processes capable of respecting Yolngu culture yet discharging the duties of the court as expected by the community. The Community Court in Nhulunbuy is generally conducted in one, two or more Yolngu Matha languages, with the majority of participants (save the judicial officer, prosecutor, defence lawyer and corrections officer) being first language speakers of one of the 30 Yolngu Matha languages. Although the primary information before the Court is interpreted, often the discussion between family members occurs in Yolngu Matha with conclusions of those discussions interpreted into English. From a judicial officer’s perspective, it is unusual to watch discussion in a court taking place in languages that we do not understand. However, if the Community Court provides a space to allow the participants to work on resolving a problem, then the fact that some aspects of the procedure are not conducted in English should not be of significant concern. As with any court of summary jurisdiction, the proceedings are recorded. I do sometimes wonder how the court transcription service will cope in the event that a full transcript is needed for an appeal.
Thus far, participants in the Community Court sessions involve a number of respected community representatives who act variously as interpreters, cultural advisers and in most instances conduct a culturally appropriate discussion with the defendant about their conduct. This final discussion with the defendant is usually delivered in tandem with sentencing remarks. My own observation is that defendants in the Community Court are much more engaged with the remarks made by respected community members than with my own sentencing reasons (even if those reasons are interpreted). Two respected community members who sit regularly in the Community Court, Mr Barnabi Wunungmurra and Ms Raymattja Marika have now been made Justices of the Peace and can rightly claim legitimacy under both systems of law.
Most (but not all), Community Courts involve the victim, a support person or persons (usually a close relative of the victim) and the defendant and support persons for the defendant. A number of Community Court sessions have involved non-indigenous victims, including in one case, five separate victims of a young offender’s property crimes and in another case, heard by my colleague Mr Greg Cavanagh SM, a police officer, the victim of an assault. That particular session has been described by various observers as moving and emotional. The Community Court allowed the police officer an opportunity to explain how it felt to be threatened with spears by the defendant and others when he was attempting to perform his duties in the highly emotive atmosphere of retrieving a suicide victim’s body. He also explained the stresses involved because had the threats continued, he may have had to resort to use of his firearm. Observers of this session agreed this was highly informative for not only the defendant but also members of the community present.
Both defence lawyers, police prosecutors and civilian prosecutors have fortunately embraced the Community Court process for select cases. Defendants or victims access the Community Court by requesting the court sit as a Community Court upon a plea (or finding) of guilt. In Nhulunbuy, the Community Corrections Officer, Ms Sharon Briston, has encouraged and developed the process and is regularly involved in assisting participants to consider various sentencing options and consider who the most appropriate people are to participate in the process. The Community Corrections Officer makes recommendations to the Community Court on possible sentencing options after consideration of cultural issues, for example, whether residency or home detention should take place at an outstation or homeland, or whether there is an appropriate person in the gurrutu (kinship system) who can supervise the defendant. She also advises on the content of community work orders, for example community work that involves cleaning up and preparing land for ceremony. Obviously it is hoped that community-based orders taking account of cultural matters will be of greater value to the defendant and the community and assist in lessening the risk of re-offending.
The gurrutu presents interesting challenges of its own when it interacts with the general legal system. In the general legal system, impartiality of the judicial officer is enhanced by the judicial officer declining to sit on cases where they know either party or have a relationship or association of any significance with either party. That concept appears to be anathema to the Yolngu. Any Yolngu process approximating a judicial process would be conducted between people with relationships within the gurrutu. The opposite principles to the general legal system appear to apply — it is the very fact of a person’s kin relationship and their knowledge of other people concerned that gives the traditional process legitimacy. I doubt that this fundamental difference between the two systems can be resolved in the general legal system. If the Community Court process continues to gain acceptance in North East Arnhem Land, it may well be because procedurally it is simply a more acceptable process than one that involves being judged solely by persons not within the gurrutu. Curiously, although the term ‘elder’ is used in many circle courts, that title is not embraced by Yolngu who interact with the Community Court on the basis that it is more a term closely associated with the church or other institutions, and does not sufficiently describe the depth of the connection between the relevant participants.
While occasionally the practice of Yolngu laws or customs have come into conflict with the general law in spectacular ways, it has not been the focus of the Community Court to attempt to resolve the substantive ‘two laws’ issue. Although cultural considerations are highly relevant to the deliberations, the difficult sentencing cases that arise in the Community Court possess elements common in all Australian courts — alcohol and substance abuse, family violence and mental illness. Ultimately the Community Court attempts to resolve a sentencing matter in a way that is compatible with the Sentencing Act (NT), yet capable of comprehension and cultural acceptance to the Yolngu, thus in turn reducing the risk of re-offending. Yolngu sanctions include temporary exile, restitution (anecdotally restitution currently involves motor vehicles changing hands) and removal from employment. This type of sanction may be capable of recognition in some sentencing orders in the general legal system and the further development of the Community Court may facilitate more culturally appropriate orders.
No doubt, as with all summary courts in Australia but especially courts not based in capital cities, better access to alcohol and drug treatment and counselling services would be of some benefit in addressing the significant underlying issues associated with offending. Even when those services are limited in remote areas such as North East Arnhem Land, engagement with the community can provide a structure allowing for rehabilitation. For example, some defendants have been managed through ‘no drinking’ orders via a number of appearances in the Community Court utilising family and outstations and redirecting the defendant to cultural activities.
As mentioned at the outset, it is still early days of the Community Court in Nhulunbuy. As yet there is no full evaluation available. It is my hope that Community Court can develop in North East Arnhem Land as a process that will contribute to the wellbeing of the community by involvement of the Yolngu, full discussion of the relevant offending and underlying issues, and putting culturally appropriate orders in place to reduce the risks of offending that currently plays such havoc in the lives of all concerned.
[*] JENNY BLOKLAND is a Northern Territory Magistrate whose regular circuit includes Nhulunbuy and Galuwinku.
© 2006 Jenny Blokland
 For a description of those languages see Michael Christie, Yolngu, Languages and Culture: Gupapuynu (Study Notes, Charles Darwin University).
 Professor Nancy Williams refers to the Yolngu ‘Moot’ throughout her work, Two Laws: Managing Disputes in a Contemporary Aboriginal Community (Australian Institute of Aboriginal Studies, Canberra, 1987).
 Ibid 96–106.