Postcode justice a barrier to culturally informed outcomes

Speaking to Lawyers Weekly at the Bugmy Bar Book’s Solution Focused Justice Symposium, Tony McAvoy SC (a Wirdi man) said First Nations people “give their best evidence when they are on their own country and outside of the formal court setting”.

“That is not always possible, but the reduction of the formality at least gives some room for the individual’s culture and belief system to come forward,” McAvoy said, reflecting on his extensive experience appearing in many native title hearings across Australia.

“What people generally don’t understand is that once a person gets the opportunity to give evidence on country, they are with their ancestors and their spirits, and they are empowered by that and enabled to speak with more freedom and more directly.”

In addition to his native title practice, McAvoy was acting Northern Territory treaty commissioner between December 2021 and June 2022, and Australian Law Reform commissioner for the inquiry into the Native Title Act 1993 between July 2024 and December 2025.

As senior counsel assisting, McAvoy has also been involved in the Yoorrook Justice Commission, which is Australia’s first formal truth-telling inquiry into the injustices against First Nations people.

Looking back at his career, McAvoy said he has witnessed First Nations people’s willingness to engage with the justice system alter significantly when they are on country, and particularly older people.

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While it is the “norm” for the court to sit on country that is the subject of a native title claim, it is not so in family or criminal courts.

In that case, McAvoy said there must be some connection to the community in the area in which the courtroom is sitting.

“Whilst the immediate environment might not be particularly conducive to having an open discussion, having elders and other family there gives the person and the place more cultural safety,” he said.

In conversation with Lawyers Weekly at the same event, Magistrate Rose Falla – who has been credited with the great success of the Koori Court – said it has been “really critical” to bring culturally informed and solutions-focused justice to regional locations.

In addition to having access to local community organisations and elders, Falla said it is also “dismissing the access-to-justice issue”.

“You have elders dealing with local people who are coming before the courts, and they know the tensions, the difficulties, how the offending is impacting the local community firsthand,” Falla added.

At the 2025 Australian Legal Convention held in the High Court of Australia, Chief Justice Debra Mortimer of the Federal Court told Lawyers Weekly that judicial officers should be making more of an effort to support First Nations people during proceedings.

For the Northern Territory stolen wages class action, the Federal Court set up locations on country. Chief Justice Mortimer also reflected on being in Cape York for a native title case that saw almost 1 million hectares returned to traditional owners.

After some time on country, the proceedings were held in Cairns, allowing about 30 to 40 group members to participate. Had it been in Brisbane, Chief Justice Mortimer said no one would have been there.

“If people are sitting there listening to the evidence, listening to, say, an anthropologist, and have a chance to talk to their lawyers, sometimes an agreement can come out of that, even in the running of a trial.

“I also think the respect that’s shown to groups by the court by making the effort to go, rather than expecting everybody to come to us, is important,” Chief Justice Mortimer said.

Articles from the Justice Symposium:

• ‘Don’t wait for government’: Justice Yehia on going it alone on solutions-focused justice
• Success cannot be reduced to statistics, senior judges say
• Justice the Koori way: The court inspiring culture-led justice across Australia
• Culturally informed courtrooms reimagining First Nations justice