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Charter of Human Rights demands access

Charter of Human Rights demands access

By Tal Shmerling

Human Rights 

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Snapshot

  • An Aboriginal person’s Charter-protected right to enjoy their identity and culture includes having their case heard in a setting that positively protects Aboriginal cultural rights.
  • The Cemino decision has resulted in increased access for Aboriginal people to the Koori Court. This has a positive impact on Aboriginal people being sentenced in the Koori Court and more broadly for Victorian Aboriginal communities.
  • Now is the time to elevate the status of Koori Courts and expand them across Victoria.

The Victorian Supreme Court has confirmed that courts must consider the distinct cultural rights of Aboriginal people under the Victorian Charter when making decisions in relation to an Aboriginal person’s request to be heard in the Koori Court. by Tal Shmerling

The systemic discrimination faced by Aboriginal people and their over-representation in all aspects of the criminal justice system has been well documented. In 2002 the Victorian government adopted a suite of measures aimed at addressing these issues.1 One of these measures was the implementation of the Victorian Koori Court system.

Established under the Magistrates’ Court (Koori Court) Act 2002 (Vic), Koori Courts aimed to ensure greater participation of the Aboriginal community in the sentencing process of Aboriginal people in the Magistrates' Court.2 This objective was emphasised by the former Attorney-General Rob Hulls in his second reading speech:

“By adopting this initiative our government intends to incorporate Aboriginal knowledge, skills, values, cultural beliefs and practices in the legal system . . . The opportunity to establish a Koori court acknowledges that it is essential to incorporate Aboriginal communities' cultural beliefs and practices . . . In essence, the Koori court is an alternative way of administering sentences so that court processes are more culturally accessible, grounded in Aboriginal communities’ efforts to promote rehabilitation and impose sanctions which are acceptable and comprehensible to the Aboriginal community”.3

In practice, various features of the Koori Court’s operation and design help it to achieve a greater degree of cultural appropriateness for Aboriginal offenders. Chief among these features is the presence and participation of Elders. The important and unique role played by sitting Elders and the importance of “shaming” as an aspect of maintaining order in Aboriginal communities was noted by Maxwell P and Buchanan JA in R v Morgan.4

In April 2017, Mr Cemino applied to the Magistrates’ Court in Echuca to transfer the criminal charges he was facing to the Koori Court in Shepparton for sentencing. Mr Cemino’s solicitor told the magistrate that Mr Cemino wanted to go before his Elders in the Koori Court where he would feel more comfortable discussing circumstances around his actions, including the recent passing of his mother, a Yorta Yorta woman. The Magistrates’ Court in Echuca refused the application, based on the magistrate’s understanding of the importance of the “proper venue” principle discussed in a 1994 decision Rossi v Martland (1994) 75 A Crim R 411 (Rossi). According to this principle, the “proper venue” for a case to be heard is the venue nearest to the place where the offence was alleged to be committed, or the place of residence of the defendant.

The Victorian Aboriginal Legal Service (VALS), on behalf of Mr Cemino, appealed the Magistrates' Court’s decision in Cemino v Cannan & Ors (Cemino).5 The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and the Attorney-General intervened in the appeal to make submissions on the application of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Charter) to the proceedings.

VALS argued that the Court made an error of law in applying the principles of Rossi as it was effectively applying a clause of the Magistrates' Court Act 1988 (Vic) which had since been repealed. In addition, VALS and the VEOHRC both argued the Court acted unlawfully under the Charter by failing to properly consider the plaintiff’s Aboriginal cultural rights under s19(2)(a) of the Charter, and his right to equality under s8(3) of the Charter when making the decision about whether to transfer the matter to the Koori Court.

Mr Cemino confirmed the important role the Aboriginal Elders play in the Koori Court, and how this contributes to an enhanced cultural experience for Aboriginal offenders:6

“The Elders know who I am and who my family is. Talking to the Elders is like talking to my family. They can speak to me about my mother and her family, about who I am, and what it means to be Yorta Yorta.

“The Elders know how things affect me. For example, my mum passed in early 2016 and when I went before the Koori Court after that, the Elders knew what had happened, and understood what I was going through.

“The Elders understand my feelings, that there is a ‘shame job’ there related to my mum because I treated her poorly and now she’s gone. The Elders know what this means for me. I can speak to them about this, in a way I can’t speak to the mainstream Court.”

Koori Courts are more than simply a jurisdiction that caters for the cultural needs of Aboriginal Victorians. Having a case heard in a setting that positively protects Aboriginal cultural rights is itself an expression of Aboriginal culture and is part of an Aboriginal person’s right to enjoy their identity and culture protected under the Charter. Koori Courts incorporate aspects of Aboriginal law into the Australian legal system in a very real and practical way.

Aboriginal cultural rights under the Charter and international law

In 2005, the Victorian parliament established the Victorian Human Rights Consultation Committee (Committee) to consult with the community regarding the need for protection of human rights in Victoria.7 Recognising that the rights of Indigenous peoples are generally best advanced through laws that are applicable to everyone in the community,8 the Committee recommended that a cultural rights provision in the Charter should be based on the protections provided in Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which provides:

“In those [nation] States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”.9

The rights conferred by s19 of the Charter are broader than those conferred by Article 27 of the ICCPR. Section 19(1) of the Charter extends protections beyond “minorities” to all persons with a particular cultural, religious, racial or linguistic background.

In addition, the Committee recommended that the right to culture should specifically recognise the right of Indigenous Australians to enjoy their own culture, profess and practise their own religion and use and enjoy their own language.10 Therefore, s19(2) of the Charter offers distinct protections for cultural rights of Aboriginal Victorians:

“Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community –

a) to enjoy their identity and culture; and

b) to maintain and use their language; and

c) to maintain their kinship ties; and

d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs”.

Specific recognition of the rights of Indigenous peoples also forms part of the preamble to the Charter, which states the founding principles of the Charter include that: human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia's first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters”.11;

The Supreme Court has affirmed that these are “wide and important” principles, preventing restrictive interpretation of the Charter.12

In Cemino, the VEOHRC submitted that s19(2) of the Charter contains a positive right of an Aboriginal person to enjoy his or her culture or identity.13 In Angela Poma Poma v Peru 14 the UN Human Rights Committee recalled its General Comment 2315 and confirmed that positive measures by states’ parties may be necessary to protect against the denial or violation of the Article 27 rights.16 The requirement for a state party to take positive legal measures was also noted in Mahuika v New Zealand.17

The VEOHRC also submitted in Cemino that the preclusion of a procedure that is sensitive to the plaintiff’s Aboriginal culture can amount to a denial of his cultural rights. It is not to the point that the other parts of the criminal justice system can, or do, accommodate the needs of Aboriginal persons. The effect of the outcome of the decision was to deny the plaintiff an opportunity to have his case heard in a setting that positively protects his cultural rights.

The Cemino decision

In September 2018, the Victorian Supreme Court ruled in favour of Mr Cemino and confirmed that courts must consider the distinct cultural rights of Aboriginal people under the Charter when making decisions in relation to an Aboriginal person’s request to be heard in the Koori Court.18 The Court also recognised the important role that Koori Courts play in addressing systemic disadvantage faced by Aboriginal people in the justice system.

This significant decision will increase access for Aboriginal people to the Koori Court. This is a positive move for the Aboriginal people being sentenced in the Koori Court, and also more broadly for Victorian Aboriginal communities.

Recommendations

The message from Victorian Aboriginal communities is clear – now is the time to elevate the status of Koori Courts and expand them across Victoria.

Following an extended period of strong advocacy from Aboriginal Victorians and their allies, in August 2017 the Victorian government announced a further $12.3 million in funding for the expansion of Koori Courts across Victoria under phase four of the Aboriginal Justice Agreement. The Victorian government should also support Aboriginal service providers to service various Koori Court venues in recognition of the fact that it is preferable for culturally competent lawyers from an Aboriginal service to appear with clients in this specialist jurisdiction. This is something Aboriginal communities have asked for through the Aboriginal Justice Agreement. 

Tal Shmerling is a senior legal adviser at the Victorian Equal Opportunity and Human Rights Commission. The views expressed in this article are those of the author.

1. Victoria, Parliamentary Debates, Legislative Assembly, 24 April 2002, 1128 (Hon Robert Hulls MP).

2. Magistrates’ Court (Koori Court) Act 2002 (Vic) s1.

3. Note 1 above.

4. R v Morgan (2010) 24 VR 230 at [35].

5. Cemino v Cannan and Ors [2018] VSC 535.

6. Note 5 above, plaintiff submissions at [42].

7. Human Rights Consultation Committee, “Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee”.

8. Adopting the view of Indigenous scholar Professor Larissa Behrendt, Note 7 above, p39.

9. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 27.

10. Note 7 above, p40.

11. Charter of Human Rights and Responsibilities Act 2006 (Vic), Preamble.

12. Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 [388] (Heydon J). See also Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [40]).

13. Cemino v Cannan and Ors [2018] VSC 535 at [114].

14. Human Rights Committee, Views: Communication No 1457/2006, UN Doc CCPR/C/95/D/1457/2006 (27 March 2009).

15. United Nations Human Rights Committee, General Comment 23: The rights of minorities, Fiftieth session, 1994, in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/ [6.2].

16. Note 14 above, [7.2].

17. Human Rights Committee, Communication No. 547/1993, UN Doc. CCPR/C/70/D/547/1993 (16 November 2000) [9.5].

18. Cemino v Cannan and Ors [2018] VSC 535.


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