Western Australian judges have made an historic pledge to right the wrongs of the past and work to build trust and confidence in the justice system for Aboriginal and Torres Strait Islander people.
The promise comes in the form of the Western Australian Courts and Tribunals Reconciliation Statement, which the state's Chief Justice Peter Quinlan said would help hold everyone in the system to account.
“The justice system only works when it works for everybody,” he said.
“It’s important for us as judges, as magistrates, as tribunal members, to recognise that there are people in our community, and particularly Aboriginal and Torres Strait Islander people, who have in the past had barriers to access to justice.
“We need to acknowledge that and we need to look forward to the future as to how we can ensure that we do provide equal justice for everyone in the community.”
But Chief Justice Quinlan acknowledged that the courts were only one part of the broader justice system — with organisations like police and corrective services also playing their own roles.
“We would like to think that all of the institutions in our society are looking towards solutions to large problems with a similarly good faith view that people want to improve … the position for all people,” he said.
“There’s a limit to that, which the courts can do in these areas, and we have to recognise that.
“It’s not for us to tell other institutions of government how they’re supposed to go about their responsibilities … but within our courts, we have got the control to determine the way in which the processes work, and the ways in which we can deliver equal justice as effectively as we can.”
Focus on language, cultural barriers
WA history is littered with examples of difficulties between Aboriginal and Torres Strait Islander people and the justice system, including wrongful convictions.
In 2017, Gene Gibson — a man who spoke limited English and whose first language was the traditional desert language of Pintupi — was freed after spending five years in jail for the death of Josh Warneke outside Broome.
Mr Gibson's lawyer successfully argued he did not understand the court process, or instructions given to him through an interpreter when he pleaded guilty despite denying he had murdered Mr Warneke.
Without referring to specific examples, Chief Justice Quinlan said language barriers and cultural differences had historically created difficulties in achieving justice.
“We have a great Aboriginal Interpreting Service of WA, but it’s also having courts and tribunals conscious of the fact that they may need an interpreter, that the processes of law may be quite foreign to people who come from a remote area who aren’t used to the formalised way in which our justice system operates,” he said.
“I can remember when I was a practising lawyer having cases where I only found out afterwards that there was some cultural issue at play that was preventing certain people from speaking up or giving evidence about things.
“Those sorts of things, you need to be vigilant about paying attention to, because it’s very easy to not notice those kinds of barriers because they’re often hidden from view.
“The important thing, from our point of view, is that in administering the law which is written to be fair and equal to all, we take whatever steps we can … to ensure that people's voices are heard, their stories are heard, in a way that connects with the justice system itself.”
Statement to guide future work
Chief Justice Quinlan launched the statement at an historic joint sitting, which brought together the heads of all the state's courts, and the State Administrative Tribunal, for the first time.
He said it was likely to be the largest formal gathering of judicial officers ever to occur in WA.
"The statement acknowledges, with regret, the failures of the past and commits all of the courts and the tribunal to which we belong, to equal justice for all in our community," Chief Justice Quinlan told the sitting.
The statement would be displayed prominently in all court and tribunal locations, he said, "as a reminder of our commitment and a statement of the principles to which we will continue to hold ourselves accountable".
Written with the help of an Aboriginal Justice Advisory Committee, the statement acknowledges the "significant barriers to justice" faced by Aboriginal and Torres Strait Islander people.
"We acknowledge, with regret, that negative experiences within our courts and tribunals, on the part of Aboriginal and Torres Strait Islander people have contributed to mistrust and a lack of confidence in the justice system," it reads.
"We recognise that our justice system can only truly be said to be fair and just when it is fair and just for all people.
"We accept that it is our responsibility to create and foster trust and confidence in our justice system on the part of everyone in our community."
Hope understanding will lead to better results
Speaking after the joint sitting, Aboriginal Legal Service WA chief executive Wayne Nannup said the statement was a "magnificent acknowledgement" of people and country.
"I'm sort of hoping that there's a deeper understanding of the challenges that we do face as Aboriginal and Torres Strait Islander people in Australia, and I hope that gives us a better perspective on when we're coming through the courts," he said.
"I hope it leads to better outcomes."
But achieving those better outcomes would require work from all involved, Mr Nannup said.
"It's a whole of system responsibility and it goes from us as individuals, to families, to community and to the broader community," he said.
"Policing has always been a difficult thing over time. It's been a challenge for our community because that's we see police as police.
"But I think there's opportunities for us to build strong relationships with police and we'll certainly do that."
Read the full statement below.
We, the heads of jurisdiction of Western Australian courts and tribunals, acknowledge the Aboriginal and Torres Strait Islander people as the first Australians and the Aboriginal peoples of Western Australia as the traditional custodians of the lands on which we live and work.
We acknowledge all Aboriginal and Torres Strait Islander people and their elders, past, present and future. We respect and celebrate the diverse languages, cultures and spiritual connection to the land, seas, sky and waterways of all Aboriginal and Torres Strait Islander people.
We acknowledge, with regret, that over the course of our shared history, Aboriginal and Torres Strait Islander people have faced significant barriers to justice in our courts and tribunals, whether as parties to civil proceedings, witnesses, victims of crime or accused persons in criminal proceedings.
We acknowledge, with regret, that Aboriginal and Torres Strait Islander people continue to be over-represented in the criminal justice system and face obstacles in pursuing their rights in a variety of other ways in our justice system as a whole.
We acknowledge, with regret, that negative experiences within our courts and tribunals, on the part of Aboriginal and Torres Strait Islander people have contributed to mistrust and a lack of confidence in the justice system.
We recognise that our justice system can only truly be said to be fair and just when it is fair and just for all people. We accept that it is our responsibility to create and foster trust and confidence in our justice system on the part of everyone in our community.
We therefore commit ourselves, and the courts and tribunals to which we belong, to working with Aboriginal and Torres Strait Islander people in Western Australia to improve access to court and tribunal services across the state, to ensure that Western Australian courts and tribunals are culturally sensitive and culturally safe, and to foster mutually respectful relationships between our courts and tribunals and Aboriginal and Torres Strait Islander people.
