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National
Exclusive by Melissa Mackay

How funding cuts are impacting the NT's bush courts, where remote residents access justice

Inside a bush court in Borroloola, where justice is a fly-in-fly-out event. (ABC News: Hamish Harty)

As soon as the plane hits the tarmac on a chilly morning in Borroloola, 900 kilometres south-east of Darwin, Erin Morton and Bryce Wilson are on a mission.

Or, realistically, more than 100 missions.

From the front of the building that will serve as the remote community's courtroom this week, they call out the names of their clients – many of whom they have never met.

The two North Australian Aboriginal Justice Agency (NAAJA) defence lawyers talk to their clients one-by-one, either in a makeshift office or under a tree outside.

As they take their clients' instructions, the Chief Judge of the Northern Territory Local Court, Elizabeth Morris, helps set up the temporary courtroom she will preside over for the next three days.

Court staff stationed outside a bush court in Borroloola. (ABC News: Hamish Harty)

The ABC was welcomed into the small multi-purpose community hall near Borroloola's main shop last week when, for a short time, it was transformed into the Northern Territory Local Court.

There, defence lawyers shared a conference table with prosecutors, while the Chief Judge sat at a collapsible plastic table at the other end of the room.

Essential court staff didn't fit. Instead, they set up outside, where community dogs were free to wander in and out of the makeshift courthouse.

It looked almost nothing like the courthouses found in most Australian cities.

However, the Chief Judge, lawyers and court staff were still there to do a job.

Police prosecutor Erica Gibson during a bush court session. (ABC News: Hamish Harty)

Of the more than 30 circuit courts in the Northern Territory, affectionately known as bush courts, only a handful have permanent courtroom facilities.

After just over an hour, the first of the day's 83 matters was called on.

But almost immediately, serious implications of the funding shortfalls faced by bush courts became clear.

The makeshift courts see flurry of action when bush court is convened. (ABC News: Hamish Harty)

"Your Honour, this is a matter in which NAAJA has a conflict," NAAJA senior defence lawyer Ms Morton told the court, as the first handful of defendants are called.

"The matter has been referred to the Legal Aid Commission and the Legal Aid Commission have refused aid."

The Chief Judge was unsurprised.

This had been an issue before and was one that everyone in the room was anticipating.

Erin Morton says remote clients can face disadvantages in sentencing. (ABC News: Hamish Harty)

"Do you ever go into Katherine?" Chief Judge Morris calmly asked each unrepresented defendant.

While most remote defendants are represented by NAAJA, if the agency identifies a conflict of interest — such as already representing a witness or complainant in a matter — they are obligated to refer that person to another agency, which would ordinarily be the Northern Territory Legal Aid Commission.

But since April, Legal Aid has stopped accepting new remote clients, and the decision is forcing some people to either represent themselves or travel hundreds of kilometres to Katherine or Darwin to access the justice system.

"We need well-resourced legal aid agencies," Chief Judge Morris said. (ABC News: Hamish Harty)

Borroloola resident Adrienne Friday said the situation was unfair to her community.

"How would they [represent themselves]?" she said.

"It's not fair, because they can't expect people to go to Katherine or Darwin.

"Not everyone in Borroloola has a job, most of my family is on Centrelink payments and that's not going to keep them going if they're going to be in Katherine or Darwin for a week."

Ms Friday says travel and confusion are significant barriers to justice for remote residents. (ABC News: Hamish Harty)

In Borroloola, Legal Aid had sent a lawyer to the community, but she was under strict instructions to only handle the matters she had before the suspension of services in April. 

It meant that, however desperately she wanted to help, the Legal Aid defence lawyer could not take on any new clients in Borroloola.

Meanwhile, an ongoing funding stoush between the organisation and the NT government has meant that NT Legal Aid says it cannot afford to keep sending lawyers out to remote communities.

"We need well-resourced interpreter services, we need well-resourced prosecution services … [and] we need well-resourced legal aid agencies, at least two," Chief Judge Morris said.

A bush court in a remote community is often a small, demountable building. (ABC News: Hamish Harty)

While bush court can and does operate, Chief Judge Morris acknowledged the lack of Legal Aid in remote communities meant some people were not able to access the justice system in the same way as those in major urban centres.

"When people don't have that advice and representation, they're not able to properly present their case before the court," Chief Judge Morris said.

"I might be able to ask them some questions, but they really need a lawyer to give them advice."

Culturally appropriate advice is important

"'Guilty' means it's true," NAAJA defence lawyer Bryce Wilson explained to a client in court, as they entered a plea.

A proud Wiradjuri man from New South Wales, on his first circuit court trip since moving to Darwin three months ago, Mr Wilson said he took his job to heart.

"You have to really create that professional distance because I've seen family members go to jail … [and] it is quite difficult to separate yourself from that," he said.

"If I can't, in a professional sense, remove [clients] or distance them from the criminal law system, then what I can do is hold their hand through the process."

Mr Wilson says entering Indigenous communities that have their own customs and imposing colonial law is "a tough thing personally". (ABC News: Hamish Harty)

Mr Wilson said having Aboriginal lawyers representing Aboriginal people broke down the first barriers between defence lawyers and their clients.

"You just get things really easily — [clients] don't have to explain what a cousin-brother is or how the kinship system works [because] you have that idea already," he said.

"To fly into this Aboriginal community that has their own laws, their own customs, and their own way of dealing with issues, to impose this colonial law … it's been a tough thing personally to do that, but I've been really supported at NAAJA."

Borroloola is a remote community south-east of Darwin near the Gulf of Carpentaria. (ABC News: Hamish Harty)

As the week carried on in Borroloola, Ms Morton was seen regularly rushing out of court behind her clients, to explain to them what had just happened.

While most defendants this week spoke English, she said she had to be careful to make sure their understanding of the English language translated into the courtroom.

"It might be that at the time charges were laid there was an issue that required police intervention but … by the time a matter gets to court it might be six months later," Ms Morton said.

"Everyone [involved in the incident] could be of the view the matter has been resolved, and you have to explain that that's not the way it's viewed in relation to the court system."

Ms Morton speaks to a client during bush court in Borroloola.  (ABC News: Hamish Harty)

Judges' hands tied by distance

Ms Morton also noted that one of the biggest disadvantages her remote clients faced was in sentencing for an offence.

"A lot of communities don't have residential rehabilitation centres and it can make it difficult when a person would really benefit from treatment programs [that] might not be available to them," she said.

"For example, a person might not get bail in community because they can't be subject to monitoring, either because their community doesn't have electronic monitoring or it might be that they reside at an outstation that doesn't have phone reception."

Chief Judge Morris says a lack of Legal Aid representation means remote residents cannot navigate the justice system the same way as people in urban centres. (ABC News: Hamish Harty)

Chief Judge Morris echoed those concerns, saying, for example, that a men's behaviour program in Borroloola would be beneficial due to the high rate of domestic violence in the community.

"In some communities there's no alcohol and drug counselling and that's also a really useful tool … to stop people or discourage them from offending again," she said.

"There's a whole web of different services that work together to help the community and sometimes those services aren't available."

'It's not just the terrible things that happen'

Over the three days the ABC was invited into Borroloola's courtroom, Chief Judge Morris was stern, methodical and wouldn't let the fact that her courtroom was a small demountable building allow anyone to cut corners.

But after decades of travelling to bush court – and before that, years spent as a lawyer at Legal Aid herself – the Chief Judge said she enjoyed the "positives" that came with her job.

Speaking to one young defendant, Chief Judge Morris asked him about his bull riding.

The sport had rated a quick mention during his appearance and the Chief Judge clearly recognised his name.

"When you keep going back to the same community, you get the know the people and the families in that community and their hopes and dreams and aspirations," Chief Judge Morris said.

"We have a family here in this area who's very well known for their rodeo skills.

"Meeting those people and then their children and finding [out] about their achievements … that's a really good part of going out on circuit court."

Ms Friday said it was "good" that the court came to her community so residents didn't have to travel. But she said her main concern was access to lawyers.

"If they don't have enough funding, what are these people going to do?" she said.

Chansey Paech became the Northern Territory Attorney-General in May. (ABC News: Hamish Harty)

Northern Territory Attorney-General Chansey Paech recently travelled to bush court in Maningrida and said he was "acutely aware" of the importance of justice in remote communities.

"I am currently seeking urgent funding to ensure the NT Legal Aid Commission can resume bush court services as soon as possible," Mr Paech said.

No timeline for the funding has been outlined by the Northern Territory government.

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