Aboriginal and Torres Strait Islander viewers are advised that the following page may contain resources with images, names and voices of people who have died.
As seen in this Victorian Aboriginal Corporation for Languages map, over 36 Aboriginal languages were spoken in Victoria before contact. But the effects of contact and policies of past governments, including the forced removal of children leading to the Stolen Generations, disrupted the continuation of many of those languages. Only a few remain today that are still spoken fluently.
Archaeological evidence has shown Aboriginal occupation across Victoria dating back thousands of years before contact. About 200 sites are within the Melbourne metropolitan area itself. In fact, a waterfall was once located at Queens Bridge in the Melbourne CBD, which was an important resource for the Woiwurrung and Boonwurrung peoples, and separated the upper and lower parts of the Yarra river. Above the waterfall, the river contained fresh, clean, drinkable water. Below the waterfall, it mixed with seawater from the bay and was rich in natural resources. The stones at the top of the waterfall also provided an easy way to cross the river, but this crossing was destroyed in the 1880s and covered by the bridge.
To learn more about contemporary Koori culture, heritage, community infrastructure and planning, visit the First Peoples – State Relations website. The Dhumba Murmuk Djerring Unit of Court Services Victoria may also provide specific assistance for judicial officers, tribunal members, and Court Services' employees and may be contacted at ku@courts.vic.gov.au.
Acknowledgment of Country
An Acknowledgement of Country is a way to demonstrate respect to First Nations people and culture and their positions as the Traditional Owners and Custodians of the land you are on when meeting. It should not be confused with a Welcome to Country, which can only be performed by a Traditional Owner of the land; an Acknowledgment of Country can be given by anyone and should be sincere, respectful, and personal.
This Acknowledgment has been endorsed by the Courts Koori Elders Caucus, who have advised that it is appropriate for all staff who work at Court Services Victoria. Additionally, the following guides provide a template for how a judge might open County Koori Court hearings in different parts of the state.
- Opening remarks and Acknowledgement of Country – Melbourne
- Opening remarks and Acknowledgement of Country – Latrobe Valley
- Opening remarks and Acknowledgement of Country – Mildura
- Opening remarks and Acknowledgement of Country – Shepparton
- Opening remarks and Acknowledgement of Country – Warrnambool
- Opening remarks and Acknowledgement of Country – Geelong
If you don’t know who the recognised Traditional Owners are for an area, you may consult this Victorian Aboriginal Heritage Council map.
As these materials demonstrate, the diversity of Aboriginal languages and meaning of words may lead to significant misunderstandings in court. It is important for judicial officers and tribunal members to be aware of this in order to avoid error or injustice.
-
DocumentFIRST NATIONS
Judicial Understandings of Aboriginality and Language Use
This paper examines how Aboriginal language use can lead to misunderstandings within the legal system, unless participants are aware of those language practices. In some cases, this may require jury directions, to ensure jurors can correctly understand the meaning of certain uses of language. -
DocumentFIRST NATIONS
The Aboriginal English in the Courts Project
This report provides a summary of major research into the difficulties Aboriginal and Torres Strait Islander peoples face when communicating in the legal system, with empirical research on the use of Aboriginal English in Victorian court proceedings and by Victorian Aboriginal Legal Services staff. It also makes suggestions on how lawyers can improve their use and understanding of Aboriginal English in court proceedings.
Bail is a significant matter for Aboriginal and Torres Strait Islander accused, both because of their overrepresentation in the criminal justice system and for cultural reasons.
-
DocumentFIRST NATIONS
Section 3A bail considerations
This resource provides a comprehensive overview of the significant factors now required for consideration when determining bail for an accused person who identifies as Aboriginal, as a result of changes introduced by the Bail Amendment Act 2023 (Vic) to the Bail Act 1977 (Vic). This resource offers a high-level understanding of the key elements crucial in such cases. -
DocumentFIRST NATIONS
Bail considerations for Aboriginal people
This guide is designed to aid cases involving Aboriginal individuals seeking bail. It addresses the amendments to section 3A of the Bail Act 1977 made by the Bail Amendment Act 2023. This resource delves deeper into the specific considerations and nuances relevant to such scenarios, offering comprehensive guidance for judicial officers. -
DocumentLAW
Report into the death of Veronica Nelson: Implications for bail practices.
Judge Fiona Todd's address at the VLA, OPP & VALS Bail Conference on March 21, 2024, highlights the preventable death of Veronica Nelson and emphasises the importance of systemic awareness in bail applications for Aboriginal individuals.
The reasons in these bail applications highlight the importance of considering and accused’s Aboriginality in determining whether to grant bail.
-
External LinkFIRST NATIONS
Re Terei [2024] VSC 294
The court underscored the significance of Section 3A in bail decisions, emphasising that the consideration of an applicant's Aboriginal cultural identity should deeply inform every aspect of the decision-making process to address systemic incarceration issues, without implying a foregone conclusion on bail outcomes. -
External Link
Re Murray [2023] VSC 266
The court finds that the risk of incarceration might further alienate a young Aboriginal offender from his culture, and that the positive community supports directed to supporting and maintaining his cultural heritage are important factors in determining if exceptional circumstances exist. -
External LinkLAW
Re Firebrace [2023] VSC 137
The court said that bail is a significant issue for Aboriginal and Torres Strait Islander defendants, both due to their overrepresentation in the criminal justice system and for cultural reasons. The decision also emphasises the importance of the Koori Court in determining whether exceptional circumstances exist for an accused person. -
External LinkLAW
Re LT [2019] VSC 143
The court found that exceptional circumstances existed that were sufficient to justify a grant of bail because a young Aboriginal woman should be supported to explore her heritage and strengthen family bonds, rather than have that opportunity disrupted by being remanded in custody. -
External LinkLAW
Re Foster [2020] VSC 62
The court said that the vulnerability of Aboriginal people in custody, combined with alternatives to remand, such as the opportunity to explore culture, and the availability of drug and alcohol rehabilitation treatment ‘based on therapeutic community principles and Aboriginal cultural practices’ may demonstrate the existence of exceptional circumstances sufficient to justify a grant of bail. -
External LinkLAW
Re Kennedy [2020] VSC 187
The court here found that the restrictions in place on remand are quite onerous for an Aboriginal offender who is both isolated from his family during a period of grieving, a significant process for his community, and the increased danger to him as a person at risk of contracting the COVID-19 virus. -
External LinkLAW
HA (a pseudonym) v The Queen [2021] VSCA 64
The court held that sections 3A and 3AAA(1)(h) of the Bail Act 1977 (Vic) require a court to consider any issues that arise due to a person’s Aboriginality and are an important and salutary recognition that cultural connection can play a significant role in rehabilitating an offender of Aboriginal heritage. It can be a pivotal factor diverting them from entrenched offending behaviour. -
External LinkLAW
Re GG [2021] VSC 12
The court found that the gross overrepresentation of Aboriginal people in custody is closely tied to the dangerousness of custody and detention for them, and that ‘the capacity for the imposition of conditions to mitigate any risk is especially important in the context of an Aboriginal child’. Further, it said the requirement in s 3A that Aboriginal cultural issues be taken into account should be read in conjunction with the cultural rights Aboriginal people possess which are protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 19, and held that together they mandate appropriate consideration be ‘accorded to a person’s Aboriginal cultural identity in adopting procedures and making determinations in a bail application’. Lastly, it noted that the purpose of sections 3A and 3B is that children, especially Aboriginal children, should be released on bail where possible in order to protect them from the physical and emotional harm and the negative formative influence they are especially vulnerable to in detention on remand. -
External LinkLAW
Re KF [2022] VSC 349
The court found that circumstances demonstrating the existence of a compelling reason justifying the grant of bail may include the profound grief caused to an Aboriginal accused by the death of two family members while on remand, and the sorrow and guilt associated with not being able to participate in Sorry Business. As well as the Sorry Business obligations imposed upon her as the senior next of kin for her daughter. The court also warned that counsel should proceed with caution in questioning a person’s Aboriginality where no controversy on that question is raised on the material before the court. Lastly, the court said that the application of s 3A may be of central relevance to consideration of the question of unacceptable risk where the bereavement experienced by the accused on remand, and the need for her to finalise funeral arrangements, should serve as an incentive to avoid doing anything that would require her return to custody where she would not be able ‘to participate in these important cultural obligations’. Further, if the accused breached her bail conditions she would be returned to custody and taken away from her family at a time when they need each other, and this strong family connectedness should serve as a protective factor.
There are Koori Courts in three Victorian jurisdictions, with the County Koori Court drawing on earlier successful implementation of Koori Courts in both the Magistrates’ Court and the Children’s Court.
The objective of each Koori Court is to ensure the Aboriginal community is more involved in sentencing by providing for Aboriginal Elders, Respected Persons, Koori Court Officers, community organisations, community groups, and family to play a part in the process. It is a much less formal proceeding; participants are encouraged to use plain language and sit together around a table where Elders and Respected Persons may give cultural advice to the judicial officer to help them make a culturally appropriate decision that helps reduce the likelihood of reoffending. The Elders and Respected Persons may also speak to the offender about their circumstances and why they are in court. The offender also has the opportunity to speak for themself.
County Court
The County Koori Court is the first Koori Court in a higher jurisdiction in Australia. Judge Johns is the judge in charge of the County Koori Court. The requirements for the County Koori Court to hear a matter are the same as in the Magistrates' Koori Court. See ss 4A-4G of the County Court Act 1958 (Vic).
The County Koori Court sits at:
• Bairnsdale
• Geelong
• Melbourne
• Mildura
• Morwell
• Shepparton
• Warrnambool.
The County Koori Court has prepared some materials to assist participants in the process, including the County Koori Court Practice Note and County Koori Court eligibility, which outlines the eligibility criteria for participation in the Court.
-
DocumentFIRST NATIONS
Case Note: Cemino v Cannan [2018] VSC 535
This note summarises the Supreme Court’s finding that when a party applies for transfer of proceedings to a Koori Court, the court must give primary attention to the subject matter, purpose and scope of the Koori Court legislation. It also found that the court must take into account the Charter rights concerning discrimination and cultural rights when making transfer decisions. Traditional principles concerning proper venue are not decisive when making transfer decisions to the Koori Court.
Magistrates’ Court
The Magistrates’ Koori Court may have jurisdiction under ss 4D-4G of the Magistrates Court Act 1989 (Vic) to deal with a proceeding if an Aboriginal offender has both:
- pleaded – or intends to plead – guilty to a non-sexual offence
- consented to the matter being dealt with by the Koori Court.
The Magistrates’ Koori Courts sit at:
- Bairnsdale
- Broadmeadows
- Dandenong
- Geelong
- Hamilton
- Heidelberg
- Latrobe Valley
- Melbourne
- Mildura
- Portland
- Shepparton
- Swan Hill
- Warrnambool.
The Magistrates’ Koori Court does not currently have the ability to hear matters involving the breach of a family violence intervention order, although a recommendation has been raised to remove that limitation.
Umalek Balit, formerly the Koori Family Violence Victim Support Program, exists at the Melbourne, Mildura, Heidelberg, Latrobe Valley, Ballarat and Shepparton Magistrates’ Courts. Umalek Balit recognises that the complexity of family violence within Victorian Aboriginal communities is reflected throughout the family violence court process. The service aims to deliver the appropriate support, information and referrals for family violence matters involving Aboriginal families. They can be contacted by email to UmalekBalit.referrals@courts.vic.gov.au.
Children’s Court
The Children’s Koori Court was established to address the overrepresentation of Koori youth in the criminal justice system. The Court aims to reduce offending behaviour and reduce the number of young Koori people being sentenced to a period of detention.
Under ss 517-520 of the Children, Youth and Families Act 2005 (Vic) the requirements necessary for the Children’s Koori Court to hear a matter are the same as in the Magistrates’ Koori Court, except that the Aboriginal child need not plead – or intend to plead – guilty, they may also have been found guilty.
The Children's Koori Courts sit at:
- Bairnsdale
- Dandenong
- Geelong
- Hamilton
- Heidelberg
- Melbourne
- Mildura
- Morwell
- Portland
- Shepparton
- Swan Hill
- Warrnambool
- Wondonga/Wangaratta.
-
VideoFIRST NATIONS1 HR 18 MIN
Celebrating Koori Court twilight recording - 7 June 2023.
In 2023, the Magistrates' Koori Court celebrates its 20th anniversary, and the County Koori Court marks its 15th anniversary. To commemorate these milestone anniversaries, JOACAC and the College organised a special event where esteemed Elders Aunty Pam Pedersen and Uncle David Farrall, along with Judge Scott Johns, Magistrate Rose Falla, and County Koori Court Officer Kylie Spencer, shared their unique insights into the transformative impact of these courts on the administration of justice for Koori communities in Victoria. -
DocumentLAW
The Complexity of Sentencing Koori Offenders
Justice Stephen Kaye summarises the principles from key cases on sentencing Aboriginal and Torres Strait Island offenders, and examines the three factors that often weigh heavily in sentencing: socio-economic disadvantage, substance abuse, and mental health issues.
Significant cases
-
External LinkLAW
R v Fuller–Cust (2002) 6 VR 496
The minority judgment of Eames JA (from [78]) remains a key statement of principle on how courts should take into account experiences of separation and disadvantage which are often present with Aboriginal offenders. The judgment grapples with the need to ensure that sentencing does not adopt a racist or paternalistic attitude, while properly recognising the impact of race on the offender’s circumstances. -
External LinkLAW
R v Morgan (2010) 24 VR 230
This case provides a detailed discussion of the Koori Court process and establishes that participation in the sentencing conversation there can be treated as a mitigating factor, depending on the facts of the case. The case also provides an example of a young Aboriginal offender who committed serious offences and had made significant and demonstrated progress towards rehabilitation which the court described as ‘uniquely compelling, particularly for an offender who had suffered from an unfortunate disadvantaged background’. -
External LinkLAW
Bugmy v The Queen (2013) 249 CLR 571
The High Court in this case affirmed the continuing need to take an offender’s disadvantaged upbringing into consideration despite a history of offending, a recognition of the kinds of disadvantage which are prevalent in some Aboriginal communities and the need for sentencing courts to consider the particular circumstances of the offender without adopting any stereotypical views based on the offender’s race. -
External LinkLAW
Munda v Western Australia (2013) 249 CLR 600
The High Court discusses the competing principles between the frequency of social disadvantage for Aboriginal offenders, the need to avoid stereotypical assumptions about Aboriginal offenders and the demands of proportionality when weighing the seriousness of offending against an offender’s mitigating factors. -
External LinkLAW
Honeysett v The Queen [2018] VSCA 214
The Court of Appeal highlights the relevance of participation in the Koori Court process to sentencing, including the relevance of voluntary participation, the need for participants to make direct statements to the court and the court's ability to assess the offender's genuineness. The Court also rejected a submission that a Koori Court must call for a pre-sentence report in all cases. See the College’s case note for summary and analysis. -
External LinkLAW
DPP v Heyfron [2019] VSCA 130
The Court of Appeal reiterates the importance of recognising participation in a meaningful way in the sentencing conversation in the sentence, and confirms that it is appropriate to take into account an offender’s participation in the sentencing conversation for the reasons explained in both Morgan and Honeysett. -
External LinkLAW
DPP v Poole (a pseudonym) [2020] VCC 340
This case provides detailed discussion of the interrelationship between personal circumstances and the wider cultural context of Indigenous dispossession. It discusses the relevance of trauma and deprivation, alcohol abuse and inter-generational disadvantage to the sentencing exercise. It also discusses the utility of a ‘Gladue-style’ psychological report tendered on the plea.
Statewide
Wulgunggo Ngalu Learning Place
This brochure outlines the services available at Wulgunggo Ngalu for Koori men on a community correction order. It provides an opportunity for them to learn new skills, connect with culture, and participate in programs to help address their offending behaviour.
Ngarra Jarranounith Place, Residential Men’s Healing Place
Information on services provided by Ngarra Jarranounith to support adult men at risk of using family violence to create positive change in their life.
Bunjilwarra
Bunjilwarra is a Koori youth alcohol and drug residential healing service designed to connect young people with Aboriginal culture while supporting their rehabilitation from alcohol or drug abuse.
Northwest: Mallee
Mallee District Aboriginal Services
MDAS provides a wide variety of services to the Aboriginal community in the Northwest. Those relevant to sentencing include the following:
- Wiimpatja Healing Centre
This service provides a 4- 12-week intensive alcohol and drug residential rehabilitation program for those on parole, a community correction order or other sentence. - Youth Justice Program and Youth Support Services
Both services are designed to divert Koori youth from involvement in the criminal and youth justice systems. - Family violence programs
These programs are designed for those accused of using family violence, as well as the families and victims of family violence. - Koori Women’s Diversion Program
This program provides referral pathways to reduce Koori women offending and support those on justice orders.
Southeast: Gippsland
Victorian Aboriginal Child Care Agency
VACC provides a variety of services to the Koori community in the southwest. Those relevant to sentencing include the following:
- Staying Strong and Staying Out of Trouble
This program aims to keep young Aboriginal people from further contact with the criminal justice system. - Koorie Women's Diversion Program
This program provides supports and services that aim to prevent Koori women from having further contact with the justice system. - Local Justice Worker
This program supports Koori offenders to meet the requirements of their community corrections orders and fulfill other sentencing obligations.
Coroners Court
The Coroners Court of Victoria has a Koori Engagement Unit to help families navigate the Coroners Court and provide additional support during the coronial process. This includes delivering sensitive information on behalf of coroners, helping families understand information contained within a coronial brief and providing support during court proceedings. Enquiries can be made to the Coronial Admissions and Enquiries on 1300 309 519.
Judicial officers and practitioners may also be assisted by the Court’s Practice Direction No 6 of 2020: Indigenous Deaths in Custody.
-
External LinkFIRST NATIONS
Inquest into the passing in custody of Veronica Nelson.
The coronial findings into the tragic death of Indigenous woman Veronica Nelson demonstrate the urgent need for widespread change in our criminal justice system to address the ongoing harm it causes to First Nations peoples.
Children's Court
Marram Ngala Ganbu is the Koori hearing day in the Family Division of the Children’s Court, hearing child protection matters at both the Broadmeadows and Shepparton Magistrates’ Courts. Marram Ngala Ganbu aims to provide a flexible, culturally affirming and safe court environment and process that enables greater participation by family members. Koori conveners sit at a number of Children’s Courts within the Family Division.
If a child protection worker places an Aboriginal child or young person in out of home care, this must be done in line with the Aboriginal Child Placement Principle.
Resources and supports are also available to aid Koori families appearing before the Court.
Victorian Civil and Administrative Tribunal
The Victorian Civil and Administrative Tribunal (VCAT) offers culturally appropriate and safe services to Koori clients through its Koori Engagement Team. The Koori Engagement Team will support and assist with applications and proceedings, and will provide culturally appropriate referrals to external stakeholders, as well as general advice and emotional support. Enquiries can be made to the Koori Engagement Team on 0417 516 335.
VCAT also provides videos showing how the Team can assist, suggestions on how to prepare for a hearing, and instructions on how to book a Koori hearing room where Koori participants can feel safe and comfortable.
Victim's of Crime Assistance Tribunal (VOCAT)
VOCAT has a Koori List to assist members of community who have been the victims of crime. Proceedings are governed by Practice Direction No 4 of 2022. VOCAT has published the Dhumbumana Healing Strategy 2021–2023 to support its delivery of services that are culturally sensitive and well regarded by the Koori community.
Courts and custody
-
External LinkFIRST NATIONS
Royal Commission into Aboriginal Deaths in Custody
This final report was published in 1991 after a 10-year investigation into the underlying social, cultural, and legal issues behind the deaths of Aboriginal and Torres Strait Islander people in custody and contains over 330 recommendations.
One of the recommendations of the Royal Commission led to the creation of the Victorian Judicial Officers’ Aboriginal Cultural Awareness Committee (‘JOACAC’), in particular the Commission’s finding that judicial officers’ lack of understanding of the cultural and socioeconomic issues affecting Aboriginal and Torres Strait Islander persons coming before the courts was one of the contributing factors to their overrepresentation in the criminal justice system.
Supreme Court of Victoria Justice Jane Dixon and Magistrates’ Court of Victoria Magistrate Rose Falla are the current co-chairs of JOACAC. Its members include judicial officers from each Victorian and Federal jurisdiction, and Aboriginal and non-Aboriginal Victorians who have an interest in educating judicial officers about Aboriginal and Torres Strait Islander cultural awareness. The Judicial College has supported JOACAC to design and deliver educational programs since 2007, including an annual series of ‘Koori Twilight’ seminars, visits to significant sites, and multi-day cultural immersion events known as ‘Back to Country’.
-
External LinkFIRST NATIONS
Pathways to Justice - Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples
This report by the Australian Law Reform Commission examined the laws and legal frameworks that contributed to the incarceration rate of Aboriginal and Torres Strait Islander peoples. -
External LinkFIRST NATIONS
The Path to Justice: Aboriginal and Torres Strait Islander Women’s Experience of the Courts
This report collates previous research on how the justice system can better meet the needs of Aboriginal and Torres Strait Islander women, and summarises fresh research in the form of consultations with stakeholders who work with Aboriginal and Torres Strait Islander women. -
External LinkFIRST NATIONS
Over-Represented and Overlooked: the Crisis of Aboriginal and Torres Strait Islander Women's Growing Over-Imprisonment
This report examines the growing rates of imprisonment of Aboriginal and Torres Strait Islander women, and recommends governments and police implement policy changes to monitor and reduce that trend. It also recommends educating judicial officers on the gendered impact of colonisation, systemic discrimination and disadvantage, and how those contribute to over-imprisonment.
Health and wellbeing
-
External LinkFIRST NATIONS
Indigenous People, Mental Health, Cognitive Disability and the Criminal Justice System
This report collates previous research on how the justice system can better meet the needs of Aboriginal and Torres Strait Islander women, and summarises fresh research in the form of consultations with stakeholders who work with Aboriginal and Torres Strait Islander women. -
External LinkFIRST NATIONS
Victorian Suicides of Aboriginal and Torres Strait Islander People
The Coroner’s Court prepared this report in order to support suicide prevention responses. It analyses all Indigenous passings identified as suicides between 2009–2020, including socio-economic demographics and contextual stressors. -
External LinkFIRST NATIONS
Stolen Generations Reparations Package
The Victorian Government has made this package available to Aboriginal and Torres Strait Islander persons that were removed from their families. It is intended to provide support to those affected, to address the trauma and suffering caused by the forced removal of Aboriginal children from their families, community and culture.
Self-determination and truth-telling
-
External LinkFIRST NATIONS
Yoorrook: A conversation with the Commissioners recording.
In 2023, the College hosted Yoorrook Commissioners, Professor Eleanor Bourke AM and Professor the Honourable Kevin Bell AM KC, for an in-depth discussion on the Commission’s ongoing work, delving into developments following the second round of hearings. A recording of this event is now available for viewing. -
External LinkFIRST NATIONS
Victorian Aboriginal Justice Agreement (AJA)
The first AJA agreement was entered into following the Royal Commission into deaths in custody. It is a long-term partnership between the Victorian Government and the Aboriginal community that works to improve Aboriginal justice outcomes, family and community safety, and reduce over-representation in the Victorian criminal justice system. -
External LinkFIRST NATIONS
Burra Lotjpa Duguludja: Victorian Aboriginal Justice Agreement (AJA) – Phase 4
This latest phase of the AJA is an important step in the long and proud history of the Aboriginal community and Victorian Government working in partnership; it strengthens and gives further expression to the Victorian Government’s commitment to self-determination. -
External LinkFIRST NATIONS
Court Services Victoria Self-Determination Plan: Action Plan 2021–2025
Following the Victorian Aboriginal Justice Agreement, Court Services Victoria has adopted four priority areas to establish a strong foundation for its Self-Determination Plan. They are: prioritise culture; address trauma and support healing; address racism and promote cultural safety; and transfer power and resources to communities. -
External LinkFIRST NATIONS
Uluru Statement from the Heart
The Uluru Statement from the Heart is an invitation to the Australian people from First Nations Australians. It asks Australians to walk together to build a better future by establishing a First Nations Voice to Parliament enshrined in the Constitution, and the establishment of a Makarrata Commission for the purpose of treaty making and truth-telling.
In Conversation with Thomas Mayo.
-
VideoFIRST NATIONS1 HR 14 MINS
In conversation with Thomas Mayo.
In October, Magistrate Rose Falla, co-chair of the Judicial Officers Aboriginal and Cultural Awareness Committee, sat down and spoke with Thomas Mayo about his writing and work. Thomas is a Torres Strait Islander man born on Larrakia Country. He is a signatory to the Uluru Statement from the Heart, a leading advocate for Voice, and the author of four books. The video recording of this compelling and wide-ranging discussion is now available to view.