The unsealed road to Wadeye is only open in the Northern Territory’s dry season. Located on the coast four hundred and twenty kilometres south-east of Darwin, most vistors to the town prefer to get there by light aircraft or by barge, the latter occasionally dodging salt-water crocodiles.
Wadeye is Australia’s largest Indigenous community, where the clan unit is of paramount importance, and individuals are socialised within this cultural context, much as they were before the missionaries first arrived in the town in 1938.
The population of around 2300 speak mainly the Indigenous language Murrinh-Patha, only using spoken English to communicate with whitefellas, such as police, government officials, and health and education-workers.
Like other remote towns in the NT, Wadeye is on the local court circuit, known as 'bush court'.
About once a month, or less frequently in some areas, bush court is convened to hear charges levelled against local offenders.
The judge, lawyers and legal teams arrive from Darwin, or other cities, and together work to deliver 'justice' in accordance with Australian law, but the town's remoteness – combined with the strength of its Indigenous culture and language – ensures the administration of Western justice is challenging at best.
Elana Scoufis spent three years with the North Australian Aboriginal Justice Agency (NAAJA). Based in Darwin, she 'circuited' across the Top End, including to Wadeye, Maningrida, the Tiwi Islands, Groote Eylandt, Numbulwar, Daly River and Nhulunbuy.
For each bush court session in Wadeye, Elana and another NAAJA lawyer would be required to represent somewhere between 20 and 40 clients, and would be in court from 8am to 6pm each day.
“It was often sweltering hot,” Elana recalls, “and there was nowhere cool for clients to wait, so it was a big ask for them to sit on the sun-drenched concrete ground for five plus hours.”
Most clients require interpreters and from time to time there is only one interpreter available. Regardless of their availability though, in Murrinh-Patha there are no words for “guilty” or “not guilty” – placing the local offender at an immediate, and significant, disadvantage.
But those stressful days weren't without some respite.
Elana recalls after a characteristically frantic day in bush court, the interpreter, Jacinta, offered to take Elana, the other lawyer and their field officer crabbing in the Country of Jacinta’s family, a beach located a short drive from the centre of town. Elena says Jacinta taught the others how to catch a crab in the mangroves with a stick.
“I say 'taught', but in reality, I poked the stick around and she caught the crab with no meaningful assistance from me!” Elana says. They then fished with hand reels, as the sun set in a blazing sky and the children played footy on the beach.
For Elana, the occasion reminded her of how little is really understood about the Aboriginal community in Wadeye.
Elana says she saw a stark juxtaposition: the people living their lives in the tight-knit Indigenous community, clearly defined by clan customs, standards, and language - then those same people as defendants and witnesses, entering a courtroom predominantly filled with non-Aboriginal lawyers, judges and police officers, to participate in an adversarial system that bore no meaningful resemblance to traditional processes of dispute resolution.
“Those same community members would leave the courtroom, walk past a police compound with a high fence around it and return to their overcrowded houses,” Elana says. It seemed that this white, colonial system of justice had permeated both the physical and psychological landscape of the place without ever becoming integrated into it, she says.
Sydney-based solicitor and human rights legal specialist Stewart Levitt believes the problems of bush court goes further.
Stewart is representing individuals of Wadeye in a class action against the NT government. Amongst other things, the class actions alleges that the bush court operation is deficient and impinges on the human rights of Indigenous people to an unacceptable degree.
He says he “stumbled on a bush court” when in Wadeye for a case and was horrified at what he observed.
The court house in Wadeye is the police station. Stewart further noticed the judge being picked up at the airport by the police, the legal team taking up accommodation with the police, and these same people being returned to the airport by the police once the bush court session ended.
“It’s pretty shocking,” says Stewart.
“When you look at the way our constitution is supposed to be set up, the executive, the legislature and the judiciary are supposed to be separate branches of government. But in Wadeye there is a merger between the executive branch – being the police – and the judiciary, which I find very disturbing, not least from a human rights perspective.”
Furthermore, with the offender’s experience with the police likely to have been confrontational, to have his or her case heard at the very place where 'lock-up' may have occurred places the offender at an immediate emotional and mental disadvantage, says Stewart.
He believes the high imprisonment rate of Wadeye's young Aboriginal men, and of Aboriginal incarceration in the Territory overall, is reflective of offenders pleading guilty either for convenience or from a lack of understanding of the Australian legal system
Many in Wadeye have long criminal records as a result, often burdened with charges of crimes they didn’t commit. This adds to the issues the local community already experiences, such as poor school attendance and 71 per cent of Wadeye’s young Aboriginal men unable to find work.
The NT government’s Aboriginal Justice Unit appears to have recognised the extent of the problems and the disadvantages to the Indigenous community of the current justice system.
Its proposed Aboriginal Justice Agreement, advocates for the re-establishment of community courts in remote areas. In a community court, there would be at least one member of the Indigenous community sitting with the judge to discuss aspects related to the offence and the background of the offender and victim(s), and explain how the offending behaviour has breached the community code of conduct. This would then inform an appropriate sentence.
Elana believes such a system would be better placed to deliver justice in Indigenous communities. However, she notes that this approach is not generally consistent with the NT government's preferred 'tough on crime' approach.
“If the government genuinely wanted to curb recidivism, then in my view it could do so by improving housing and living conditions for people in Aboriginal communities, thereby reducing intra-familial tensions and domestic violence, providing more funding to the Aboriginal Interpreter Service, regularly consulting with Elders and prioritising community-led systems of conflict resolution and rehabilitation,” she says.
Stewart is also of the view that the standards of the community – within a framework of Australian law – should be those that are applied in delivering justice in Wadeye, and other remote Indigenous communities.
However, he shares Elana’s misgivings that the idea of community courts will ever see fruition, lamenting instead the lack of a treaty with the Indigenous people, and of an Indigenous Charter of Rights.
“Without these, community courts are not going to work," he says.
However, Stewart is confident his class action against the NT will have a good outcome for his clients. It could be a step towards the solutions Elana dreams of, even the Treaty and Charter long denied to Australia’s Indigenous people.
-The views provided by Elana Scoufis were provided in a personal capacity and do not express the views or opinions of the North Australian Aboriginal Justice