The Nunga Court Division of the Magistrates Court formally commenced on 1 March 2023. It had been operating in practice from as early as 1999, in initially at Port Adelaide before beginning at other locations. Whilst typically referred to as the Nunga Court, it has also been referred to as Aboriginal Court Day or the Aboriginal Sentencing Court. 

The Nunga Court provides Aboriginal defendants with a culturally-appropriate sentencing option through participation in a sentencing conference. This process aims to overcome cultural barriers to understanding the law, court practice and procedure. It also seeks to build relationships with Aboriginal communities and organisations, reduce offending, and provide holistic outcomes for Aboriginal defendants through referrals to appropriate medical, mental health and other rehabilitation services.

Pursuant to section 9AA of the Magistrates Court Act 1991 (SA), the purpose of the Nunga Court is to: 

The Nunga Court operates from the Port Adelaide, Murray Bridge, Port Augusta, Mt Gambier, Pt Lincoln and Ceduna Magistrates Courts. The Courts Administration Authority Nunga Court Bench Book provides an overview the legislation, rules and practices of the Nunga Courts at Port Adelaide and Murray Bridge.

Sentencing procedures are less formal when facilitated through a sentencing conference. The Nunga Court is required to be conducted with as little formality as possible, as quickly as reasonably practicably and in a way that is likely to be understood and followed by the defendant, the defendant's family members and any other members of Aboriginal and Torres Strait Islander communities [s 9AA(4)].

The Nunga Court must be assisted by one or more [s 7C]:

The Nunga Court may also be assisted by any other person the Court deems appropriate. The person or people assisting the Nunga Court do so by providing advice on Aboriginal and Torres Strait Islander society and culture, and any other matter the Court considers appropriate. Aboriginal Justice Officers can also provide the Magistrate with advice on relevant cultural and community issues.

All participants (including the Magistrate) sit on the same level. Victims, family and community members are encouraged to attend the court and to participate in the sentencing conference. The Aboriginal Justice Officer provides guidance and support to defendants, their families and the community on court process and outcomes (including reminders of pending court days and times, and assistance in understanding bail and bond conditions). In addition, the Aboriginal Justice Officer provides cultural awareness education to members of the judiciary and court staff, and education to Aboriginal communities about the legal system.

Eligibility criteria

The Nunga Court Division is available to a defendant: 

The Court should grant eligible applications to be sentenced in the Nunga Court, except where it is not appropriate to do so [Magistrates Court Act 1991 (SA) s 9AA(2) and (3)].

A person is an 'Aboriginal or Torres Strait Islander person' for the purpose of the Nunga Court if the person is descended from an Aboriginal or Torres Strait Islander, and who considers themselves to be, and is accepted by the Aboriginal or Torres Strait Islander community to be, an Aboriginal or Torres Strait Islander [s 3(1a)]. All applicants are assessed by an Aboriginal Justice Officer who must first determine that the defendant is an Aboriginal person.

A defendant who has other unresolved criminal offence(s) in any other court may not be considered appropriate for sentencing in the Nunga Court. 

A defendant who is suffering from a mental impairment (as defined by section 30 of the Sentencing Act 2017 (SA), chronic drug or alcohol dependence, or who is a long term recidivist offender) may not be eligible for a sentencing conference [see Magistrates Court Diversion Program]. The Court has a discretion as to whether or not the defendant will be accepted for the Nunga Court, and may refuse an application to be sentenced in the Nunga Court.

Historically, Aboriginal Court Day had been available to Aboriginal defendants who had either entered guilty pleas or been found guilty of an offence(s) and who wished to be sentenced by way of a sentencing conference. The Magistrates Court Act 1991 (SA) limits the jurisdiction of the Nunga Court to persons who have pleaded guilty to offences only [s 9AA(2)]. 

The sentencing conference

A sentencing conference must include the defendant, the defendant's legal representative and the prosecutor, and may include the victim [see Sentencing Act 2017 (SA) s 22(3)]. Nunga Court sentencing conferences must also include an Aboriginal Elder or Respected Person or a person qualified to provide cultural advice. They may also include a member of the defendant’s family; a person who provides support or counselling to the defendant, or any other person the court considers may usefully contribute towards the sentencing process [s 22(4); see also Magistrates Court Act 1991 (SA) s 7C]. An Aboriginal Justice Officer assists the court by convening the sentencing conference, by providing the court with advice on Aboriginal society and culture, and by assisting Aboriginal persons to understand court procedures, sentencing options and how to comply with court orders [ss 22(1) and 22(6)].

In addition to information relevant to sentence raised and discussed during the sentencing conference, the court may also consider ordering expert reports such as pre-sentence, psychiatric, psychological and anthropological reports; and it may seek further advice from the Aboriginal Justice Officer in order to assess the defendant’s needs and the best means to provide support for those needs through the sentencing process. The court may consider adjourning the matter to allow the defendant an opportunity to address any issues raised at the conference [see Sentencing Act 2017 (SA) s 29(1)].

A sentencing conference will ultimately be conducted in accordance with directions given by the presiding judicial officer [Joint Criminal Rules 2022 (SA) r 148.1(3)].