Case 41: Aboriginal cultural rights need to be considered in decisions around access to the Koori Court

An Aboriginal man, Mr Cemino, applied to the Magistrates’ Court in Echuca in country Victoria to transfer the criminal charges he was facing to the Koori Court in Shepparton for sentencing. Mr Cemino wanted to go before his elders in the Koori Court to discuss the circumstances around his actions. There is no Koori Court in Echuca. The Magistrates’ Court in Echuca refused his application, based on the Magistrate’s understanding of the ‘proper venue’ principle, which is the principle that a case is to be heard at the venue nearest to the place where the offence was alleged to be committed, or the place of residence of the defendant. Mr Cemino appealed the decision partly on the grounds that his cultural rights and right to equality under the Charter were not properly considered. The Supreme Court found the Magistrates’ Court erred by giving primacy to the proper venue principle and should have considered Mr Cemino’s rights when deciding whether to transfer the proceedings to the Koori Court. This is because the Charter requires that all statutory provisions be interpreted in a way that is compatible with human rights so far as it is possible to do so consistently with their purpose. The Supreme Court ordered the Magistrate’s decision be set aside and allowed Mr Cemino to have a different Magistrate consider his transfer request.

Sources: 2018 Report on the Operation of the Charter of Human Rights and Responsibilities, p. 79; Cemino v Cannan [2018] VSC 535. See our case summary here: https://www.hrlc.org.au/human-rights-casesummaries/2018/10/29/human-rights-charter-demands-access-to-koori-court-victorian-supreme-courtholds