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Australia’s first Aboriginal ACT Supreme Court judicial officer, Justice Louise Taylor, spoke to Lawyers Weekly about the importance of trauma-informed courtrooms, collaboration with First Nations experts, and having legal practitioners who look beyond the statistics.
The ACT Supreme Court’s pilot Circle Sentencing List, overseen by Justice Taylor (Kamilaroi woman), has turned the legal system on its head to deliver trauma-informed and culturally safe justice for First Nations people, including offenders, victims and their communities.
Provided they have pleaded guilty to an offence – excluding homicide, sexual crimes, or dangerous driving causing death – an offender participates in a court process that values community participation and Aboriginal and Torres Strait Islander experiences.
Speaking on a panel at the Bugmy Bar Book’s Solution Focused Justice symposium on Saturday, 21 February, Justice Taylor said these offenders also have the benefit of the Independent Aboriginal and Torres Strait Islander Experience Report.
“They are instrumental in ensuring that everyone in the courtroom understands how significant culture is to Aboriginal people and the offenders that we are dealing with, but also importantly to understand the modern legacy of colonisation and the impact that it is having not just upon our people as offenders but the impact it is having on our people as victims of crime,” Justice Taylor said.
Joining Justice Taylor on the panel was Vanessa Edwige (Ngarabal woman), a senior psychologist, chair of the Australian Indigenous Psychologist Association, and author of what has been affectionately dubbed the “Edwige Reports” within the Circle Sentencing List.
Edwige said that when a person’s cultural identity is not properly considered, the court risks misinterpreting their behaviours. For example, silence or emotional dysregulation can be wrongly perceived as disengagement, lack of remorse, or evasiveness.
“When their cultural identity is misunderstood or ignored, individuals may feel silenced or disempowered, undermining procedural fairness and meaningful participation, and this can reduce engagement with the court processes, increase the risk of non-compliance and diminish trust in the justice system,” Edwige said.
Reflecting on her time as a legal aid defence lawyer, Justice Taylor said she would often sit down with a client and think: “There’s something going on here, I need to know more to be able to tell their story to the judge.” Often, the responses of her clients were dismissive out of a fear that it would not make a difference.
Now, one of Justice Taylor’s frustrations is when there is a “rich source of information” – like that in the reports – and legal practitioners are not engaging with it to tell their client’s story.
“[They should be] translating the statistics, the measures, the evaluations into an individual story. There are people behind the statistics. There are families behind those statistics. There are communities behind those statistics,” Justice Taylor said.
Edwige encouraged legal professionals to approach medico-legal reports and cultural reports written by First Nations experts as specialist evidence “grounded in lived experience, cultural knowledge and professional expertise”, rather than as an advocacy document.
“First Nations people have long, long experienced their stories being questioned, minimised or reframed within legal systems, and legal professionals should be mindful of not subjecting cultural reports to a higher or more adversarial standard of scrutiny,” she said.
Legal practitioners should also read the reports “holistically and not selectively”, and resist the temptation to isolate one factor. When unfamiliar concepts arise, they should meet them with curiosity and clarifying questions, rather than with any kind of scepticism.
Edwige encouraged practitioners to use them to support therapy or diversionary options, and shape orders that are “realistic, culturally safe, and rehabilitative”. Engaging in the reports respectfully provides them “a much deeper understanding of the client”.
Justice Taylor added it also provides them with a “capacity to lock the court into individualised justice that is truly individual”.
Speaking to Lawyers Weekly after the panel, Justice Taylor said it is essential these reports are authored by people, like Edwige, who have lived experiences of First Nations culture, “and an understanding of the historical legacies that influence our culture”.
This is so the court “understands what Aboriginal people who are coming through the courts experience as cultural peoples and peoples who have traditionally been marginalised by that system”.
Edwige said an offender’s previous experience with court reports could have likely been with a non-Aboriginal person and might have been “pretty horrendous”. Justice Taylor added that this process could be seen “as quite transactional” in the traditional legal system.
“When you have an Aboriginal psychologist and you’re preparing the report, you actually can get it, you understand some of the historical and social determinants that are underneath all of this and ask the questions that reveal a lot more about the person’s history, then contextualise their offending behaviour,” Edwige said.
Justice Taylor said it also provides an “intuitive understanding of how our family structures work, [how] our relationship works in our community, without a need to explain biological connection, which is often what people go to. Biological connection is often not what is connecting people to one another in a family-like structure”.
