What if magistrates courts delivered a different kind of justice?

By Kirsty Duncanson, Stephanie Falconer, Emma Henderson, and Nicole Shackleton

Magistrates Courts are the engine rooms of the Australian criminal justice system.  Ninety six percent of Australian criminal cases are heard in magistrates’ courts.  Most of these cases are heard without legal representation, during a five minute hearing, and result in 87 percent of defendants being found guilty. In 1976, Pat Carlen demonstrated that the physical design of the courtroom contributed to this conveyer-belt justice. Ominously high benches rendered magistrates’ intimidating. Their distance from the bench forced defendants to deliver often intimate and embarrassing details of their lives across the courtroom. Poor acoustics meant defendants couldn’t hear or fully participate in their own cases.  Forty years later, these same issues continue to conspire with attitudes and practices that prioritise efficiency and cost effectiveness in magistrates courts.

The experience of magisterial justice by Indigenous defendants demonstrates the devastating impact that this process has on people’s lives.  For example, the tripling of custodial sentences imposed for fine defaulting in WA has been linked to a sixfold increase in indigenous prisoners.  Indigenous people are continually imprisoned for minor offences including driving without a licence,[1] disorderly conduct,[2] and court non-attendance.[3] Thirty years after the delivery of the Royal Commission Report into Aboriginal Deaths in Custody, this is a shocking state of affairs.

What if magistrates courts delivered a different kind of justice?

Instead of further entrenching disadvantage, what if magistrates courts could be used to help overcome it?

Last week, the Space of Justice Symposium brought together lawyers, magistrates and judges, court workers, policy makers, architects and academics from the US, UK and across Australia to think about how justice could be housed, practiced, and imagined differently. One of the powerful stories repeated throughout the conversation was the need to redesign not only courthouses, but also the ideology and delivery within those spaces.

The Kununurra Courthouse in the Kimberley provides inspiration, as do the Victorian-based Neighborhood Justice Centre and New York’s Red Hook Community Justice Center.  Located in three distinct jurisdictions, built in different decades,  and serving very different communities, these courthouses share core features of design, ideology and practice. These radically reconfigured justice buildings are changing the communities they serve.

 Most powerfully, the design of each building decentres the courtroom. As Professor Mark Halsey describes it, the prestige of the court is decentred such that court proceedings are just one part of the greater activities conducted within.  Privileged instead, is Community.  While the courtroom of each is literally situated off-center, space for local communities has been created. Physical elements including the arrangement of seating that allow different ways of using waiting areas, combine with clear sightlines, access to external views, and the incorporation of community art, culture and law. Alterations to courtrooms have removed docks, lowered magisterial benches, increased natural light, and even enabled the sound of playing school children to filter into court proceedings. Each of these elements ground the three courthouses in place, prioritise the needs of court users and welcome members from local communities.

 Each space was designed with extensive community consultation.  Members of the Red Hook community choose the final location of the New York Center, while the design and construction of the Kununurra Courthouse involved intensive collaboration with the indigenous community.  Additionally, Cultural representations are a central feature in each Court building.  The Kununurra Courthouse acknowledges cultural law through architectural integration of Indigenous art.   Landmarks of Indigenous legal significance are represented in its shape and visible through its windows.  Through this inclusion of Culture, Hook says ‘the building becomes a place for the community to meet.’  The courthouse has become a gathering place.

 Koori Justice Worker, Kylie Smith, echoed Hook’s observation in her description of the NJC as a safe place for Indigenous people. Smith’s comment attests to an incredible achievement: the transformation of a magisterial space into a safe place and a resource for people predominantly disadvantaged by a colonizing legal system.

 The material form of all three of these courthouses has positively affected their local communities. However, as Carlen cautioned at the symposium launch,  design improvements are not enough to ensure that our legal system does justice well. Through his 2009 evaluation, Halsey identified a key tenet of the NJC’s success as an understanding of therapeutic jurisprudence shared by every single member of staff. This is the philosophy that legal processes might be used to enhance the well-being of defendants, rather than simply punishing them. Halsey went on to emphasise that this ideology is distinct from implementing state justice with sympathy, an attitude which encourages pity. Instead, therapeutic jurisprudence requires an empathy that allows court staff to feel with each person who walks through the courthouse doors. It is an approach he describes as embracing the messiness of people’s lives.

This ideology has shaped the problem-solving practices of both Red Hook and the NJC.  It involves slowing down proceedings in order to identify the needs of the defendant.  At the NJC, the Justice Officer coordinates support for court-users, court staff and the 22 separate service providers, all co-located on the magisterial premises. This enables defendants’ access to drug and alcohol support services, housing and financial services, mental health services, and Koori Justice Workers.  The focus of the proceeding is in this way transformed from individual condemnation to addressing the complex web of endemic social issues that contexualise the offending.

Through this model, better social justice can extend beyond the walls of carefully designed courthouses. Smith talked about being called from Collingwood streets and being stopped on trams by local Kooris for advice, support and conversation.  She explained that through her role at the NJC she has come to carry these key tenets of its success with her, to be enjoyed by her fellow travellers. Similarly, Commissioner Auty illustrated the ways in which the empathy of Indigenous women at the Koori Court and the Kalgoorli Aboriginal Sentencing Court transfigured those spaces and the lives of the court users. The work of these women has provided better outcomes for indigenous defendants, but more than this, it has empowered Indigenous people with a sense of ownership and right of access to the dominant legal system.

 The analytic work of legal, architectural and criminological scholars such as Rowden, Tait, Carline, Resnik, Wallace, Brawn, Black, and Grant, demonstrate the importance of design to better justice outcomes.  However, a take-home message from the symposium is that more important than Justice Buildings, is building justice.  While thoughtfully designed spaces can enhance and facilitate a better kind of justice, it is the ideology practiced within and beyond them that makes the crucial difference.   This is encapsulated by an exciting new project envisaged by Professor Harry Blagg, of a mobile problem-solving court delivering justice in the most remote areas of the Kimberley.

[1] https://www.theguardian.com/australia-news/2017/mar/01/laws-may-need-to-treat-indigenous-people-differently-inquiry-head-says

[2] Anthony, Thalia. Deaths in custody: 25 years after the royal commission, we’ve gone backwards [online].  Green Left Weekly, No. 1092, 26 Apr 2016: 11. Availability: <http://search.informit.com.au/documentSummary;dn=025898274274495;res=IELHSS> ISSN: 1036-126X. [cited 12 Jul 17].

[3] https://www.creativespirits.info/aboriginalculture/law/aboriginal-prison-rates#toc4

La Trobe