Courthouse Architecture, Design and Social Justice

Kirsty Duncanson, Emma Henderson

• Publisher: Routledge
• Year: 2021
• ISBN:
  9780429594793
• Edition: 1
• Topic: Architecture
• Subtopic: Architecture General

This collection interrogates relationships between court architecture and social justice, from consultation and design to the impact of material (and immaterial) forms on court users, through the lenses of architecture, law, socio-legal studies, criminology, anthropology, and a former senior federal judge.

International multidisciplinary collaborations and single-author contributions traverse a range of methodological approaches to present new insights into the relationship between architecture, design, and justice. These include praxis, photography, reflections on process and decolonising practice, postcolonial, feminist, and poststructural analysis, and theory from critical legal scholarship, political science, criminology, literature, sociology, and architecture. While the opening contributions reflect on establishing design principles and architectural methodologies for ethical consultation and collaboration with communities historically marginalised and exploited by law, the central chapters explore the textures and affects of built forms and the spaces between; examining the disjuncture between design intention and use; and investigating the impact of architecture and the design of space. The collection finishes with contemplations of the very real significance of material presence or absence in courtroom spaces and what this might mean for justice.

Courthouse Architecture, Design and Social Justice provides tools for those engaged in creating, and reflecting on, ethical design and building use, and deepens the dialogue across disciplinary boundaries towards further collaborative work in the field. It also exists as a new resource for research and teaching, facilitating undergraduate critical thought about the ways in which design enhances and restricts access to justice.

Part I

Building justice

1 Reimagining spaces for Indigenous justice

The architecture and design of the Kununurra Courthouse

Elizabeth Grant and Martyn Hook

DOI: 10.4324/9780429059858-3

Introduction

The design of buildings and environs for the fair and just delivery of Western forms of justice for Indigenous peoples is a new architectural domain. In this chapter, we discuss the background and design of the Kununurra Courthouse, a new courthouse designed and built in Kununurra, a town in northern Western Australia on the eastern extremity of the Kimberley region near the border of the Northern Territory.¹

1 Kununurra was created as a service centre for the construction of Lake Argyle, a large human-made freshwater reservoir created by damming the Ord River. Kununurra’s population comprises some 7,500 permanent residents, growing to approximately 10,000 people in the ‘dry’ season, due to tourism. Thirty per cent of the population identify as being of Aboriginal descent, who are highly overrepresented in the criminal justice system.

Courts have been part of a ‘revolving door of despair’ for generations of Australian Indigenous people. Historically, procedures occurring in courts have contributed little to decreasing the overrepresentation of Indigenous people in the criminal justice system. The physical nature of the Western court settings designed with layers of hierarchy and control devoid of Indigenous control, have not allowed Indigenous people to participate meaningfully and have contributed to greater numbers of Indigenous people being remanded or sentenced to custody.

This chapter is a collaboration bringing the first author’s theoretical scholarship in the field of Indigenous architecture and placemaking together with the architectural theory scholarship and practice experience of the second author as an academic and a senior member of the design team for the Kimberley courthouse project. It should be stated from the outset that the authors, in line with the views of many others, see inherent issues arising from the design of courts, courthouses, and other criminal justice projects for Indigenous users. The vexing question continually arises as to how architects and design practitioners are able to design to engage Indigenous peoples with Western legal systems, when these are the systems that have usurped Indigenous peoples from traditional lands, destroyed sacred sites, and been used almost universally to divide and conquer.²

2 While Indigenous traditional law/lore is still applied by people in some Australian First Nations, all Australian citizens are held to account by the substantive law of Australia, which is largely derived from the common law system of English law.

Colonial Australia was formed on the falsehood of terra nullius, and an epistemological arrogance that deemed English law, and those who deliver it, as having definitive and ‘true’ knowledge. English law was used deliberately to divide and conquer and to disrupt the traditional law/lore and cultural practices of hundreds of Aboriginal Nations across Australia. The ongoing impacts of colonisation are apparent across Australia, manifested in the manner in which Aboriginal Australians are overrepresented in the criminal justice system and are prevented from sharing the socioeconomic outcomes enjoyed by many non-Indigenous Australians. The authors argue for the need for new architectural typologies using principles from outside the Anglosphere to unseat the Western nation-state and right historical injustices for Australian Aboriginal peoples.

In accepting the commission to design the Kununurra Courthouse, Iredale Pedersen Hook, in collaboration with TAG Architects, assumed the responsibility of working with the various stakeholders including Traditional Owners.³ This chapter discusses the history, social context and aspirations of Traditional Owners and knowledge holders of Kununurra, the Miriwoong (alternative spellings Miriuwung or Miriwung) peoples and their aspirations to create architecture that publicly addresses historical injustices, brings Indigenous values and aspirations to the forefront of design, and challenges traditional courthouse architecture.⁴ The chapter goes on to discuss the manner in which architecture may address Indigenous cultural, socio-spatial, and environmental needs to create an ‘Aboriginal place’ where justice could be delivered, and how post-colonial approaches have been applied to the architectural and landscape design for a courthouse. This has taken place within a range of legal developments occurring in Australia. These initiatives have included the development of Aboriginal courts, circle sentencing, and mediation processes, which involve Aboriginal people as key participants.⁵ All of these developments have required unseating the Western nation-state as the point of engagement, and reconceptualising heuristic pathways in the design and physical setting of the court and courthouse. Indigenous personal and community pagi and the unceded demesne of Traditional Owners have had to be considered to reconceive courthouses as places that deliver fair and equal justice. Critical to such developments are understanding histories, empowering Indigenous peoples, respecting Aboriginal peoples as the First Peoples of Australia, and allowing Indigenous people to lead the way in reconstructing and reimagining a fair and just justice system⁶ to achieve full emancipation, and the assertion and reclamation of the rights of First Nation peoples.

3 The briefing process was complex and included a variety of stakeholders including local business owners, the judiciary, Courts Administration, and other parties. 4 The Mirima Dawang Woorlab-gerring Language and Culture Centre encourages the use of the spelling ‘Miriuwung’ only when referring to the native title determination legislation and the body corporate’s name, and encourages the use of ‘Miriwoong’ in all other situations. See Mirima Dawang Woorlab-gerring Language and Culture Centre, A Note on Miriwoong Spelling (Web Page, 2019) <http://mirima.org.au/a-note-regarding-miriwoong-spelling/>. 5 See, for example, John Tomaino, Aboriginal (Nunga) Courts (Office of Crime Statistics & Research, 2004); Mark Harris, ‘From Australian Courts to Aboriginal Courts in Australia: Bridging the Gap?’ (2004) 16(1) Current Issues in Criminal Justice 26–41; Elena Marchetti and Kathleen Daly, Indigenous Courts and Justice Practices in Australia: Trends & Issues in Crime and Criminal Justice No. 277 (Australian Institute of Criminology, 2004); Elena Marchetti, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29 Sydney Law Review 415; Emma Henderson and Kirsty Duncanson, ‘The Space of Justice: Courtrooms, Innovation and Practice’ (2018) 27(2) Griffith Law Review 173–175. 6 See Harry Blagg and Thalia Anthony, Decolonising Criminology: Imagining Justice in a Postcolonial World (Palgrave Macmillan, 2019).

The attempted subjugation of the Miriwoong and Gajerrong peoples

Major relocations of Aboriginal people in the Kimberley region occurred as people were ‘moved’ when Crown land was ‘leased’ to pastoralists. The resultant displacements meant that ‘[f]or most Aboriginal people living in this region, the period between the 1880s and the 1920s [was] a time of fear and chaos’.⁷ From 1886, legislative frameworks regulating mobility, employment, and other forms of interactions with Europeans underpinned the relationship between Aboriginal peoples and pastoralists.⁸ Police collaborated with station managers to coerce Aboriginal peoples to work on stations.⁹ Aboriginal mobility was encouraged by station owners to fit with the seasonal cycles of the monsoonal climate, when their labour was not required. By the mid-1940s, Aboriginal people were living in ration camps on pastoral stations throughout the dry season. Work on the stations ceased during ‘the wet’, during which time Aboriginal people would move to bush camps and live in a ‘traditional’¹⁰ manner.¹¹

7 Pamela Smith, ‘Station Camps: Legislation, Labour Relations and Rations on Pastoral Leases in the Kimberley Region, Western Australia’ (2000) 24 Aboriginal History 75–97. 8 Ruth Lane, ‘History, Mobility and Land Use Interests of Aborigines and Farmers in the East Kimberley in North West Australia’ in Pamela J. Stewart and Andrew Strathern (eds), Landscape, Memory and History: Anthropological Perspectives (Pluto Press, 2003) 136–165. 9 Deborah Bird Rose, Hidden Histories: Black Stories from Victoria River Downs, Humbert River and Wave Hill Stations (Aboriginal Studies Press, 1991); Bruce Shaw, When the Dust Come in between: Aboriginal Viewpoints in the East Kimberley Prior to 1982 (Aboriginal Studies Press, 1992). 10 Mary Durack and Elizabeth Durack, ‘All-About: The Story of a Black Community on Argyle Station, Kimberley’ (1936) The Bulletin. 11 Lane (n 8).

The upheaval of Aboriginal people in the Eastern Kimberley region was amplified with the commencement of the Ord Irrigation Scheme.¹² Kununurra was built as the service centre for the scheme in 1960, with the construction of the Kununurra Diversion Dam across the Ord River, completed in 1963. Without consultation,¹³ Country (dawang) belonging to the Miriwoong and Gajerrong peoples¹⁴ was flooded. Already excluded from sites of cultural importance by the establishment of pastoral leaseholds, the construction of Lake Argyle, Australia’s largest dam reservoir (covering an area of 741 square kilometres), Aboriginal people were further expelled from their Country, including sites of historical and cultural significance.¹⁵ The establishment of Kununurra and the construction of Lake Argyle also coincided with structural changes in the pastoral industry that resulted in Aboriginal people leaving the stations¹⁶ and moving to Kununurra. Most families initially camped around Lily Lagoon, and then moved into self-built houses in a designated reserve area on the town’s fringe.¹⁷ Tensions that had arisen due to exclusions from traditional lands grew as mining activity¹⁸ expanded. Aboriginal people experienced ongoing colonial penetration and serious impingements on Indigenous livelihoods.¹⁹ All the while, pastoralists, irrigators, and then mining companies²⁰ made unilateral decisions about the land with neither consultation nor compensation.

12 The Traditional Owners of the East Kimberley include the people of the Balanggarra, Miriwoong Gajerrong, Yurriyangem Taam, Gooring, Malarngowem, Koonjie Elvire, Purnululu, Ngarrawanji, Uunguu, Wilinggin, Gajirrabeng, Gooniyandi Kija, Walmajarri Kwini, Jaru, and Tjurabalan groups. 13 Jessica McLean, ‘From Dispossession to Compensation: A Political Ecology of the Ord Final Agreement as a Partial Success Story for Indigenous Traditional Owners’ (2012) 43(4) Australian Geographer 3...