Chapter 5 - Indigenous legal services
5.1
This chapter discusses the following issues that were
raised by submissions and during public hearings:
-
funding for Aboriginal and Torres Strait
Islander legal services (ATSILS);
-
the need for separate legal aid services for
Indigenous people;
-
the Commonwealth Government's proposed
introduction of tendering for Indigenous legal services;
-
issues relating to Indigenous women, including
conflict of interest issues;
-
alternative dispute resolution; and
-
broader access to justice issues.
Funding for Indigenous legal services
5.2
Prior to the establishment of the Aboriginal and Torres
Strait Islander Commission (ATSIC) in 1989, ATSILS were funded by the
Commonwealth Government through grants-in-aid administered by the then
Department of Aboriginal Affairs.[243]
5.3
ATSILS are now funded by the ATSIC Legal and
Preventative Services Program,[244]
administered by ATSIS.[245] The
principal funding recipients are a network of 25 ATSILS, located at 96 service
sites nationally. These are Indigenous owned and controlled organisations that
provide legal aid in a culturally appropriate way.[246] ATSIS also
provides funding for a network of Family Violence Prevention Legal Services.
5.4
The total amount of legal funding administered by ATSIS
in its Law and Justice Program for the 2002-03 financial year was $57.093
million.[247]
In the same financial year, ATSILS received a total of $43.053 million for
legal representation to 69,292 Indigenous clients in 113,698 duty matters.[248] State and territory governments also provide
funding for ATSILS.[249]
5.5
In its submission, ATSIC stated:
ATSILS are required to prioritise provision of services in
accordance with ATSIS National Program Policy Framework for ATSILS
Accordingly, in face of sheer demand for assistance, ATSILS predominantly provide
legal aid services for criminal matters (89% of case and duty matters in
2001-02; compared with only 2% family matters and 2% violence protection
matters).[250]
5.6
ATSIC also submitted that current challenges for its
legal aid program are:
-
the rapid growth in the number of young
Indigenous people, with over 40 per cent of Indigenous people being under 15
years of age;
-
growing demand for ATSILS to provide services
relating to child protection, civil and family matters; and
Funding shortfalls
5.7
Several Indigenous legal service providers expressed
concern that they are unable to meet increasing demands because of inadequate
funding.[252]
5.8
ATSIC noted that financial constraints prevent genuine
access to justice for Indigenous people on a wide range of matters and contribute
to high incarceration rates and recidivism amongst Indigenous Australians:
It should be emphasised that there is a very real disadvantage
experienced, now, by Indigenous people due to the constrained resources
provided to Indigenous legal aid services which simply do not match the number
of people and matters requiring assistance.[253]
5.9
ATSICs submission referred to an overall funding
shortfall for Indigenous legal aid services when compared with LACs:
ATSICs submission to the Department of Finance and
Administration Pricing Review in 2001 found a $12 million annual funding
shortfall of ATSILS compared to Legal Aid Commission benchmarks. ATSIS
commissioned the Australian Institute of Criminology to develop a funding
allocation method (FAM) to advise proportionate need for legal service funds
between the ATSIC Regions. While the formal report is not yet available,
initial studies point to a severe shortfall in funding against current
indicators of need.[254]
5.10
ATSIC argued that, while there are serious resource
strains across the whole legal aid system which need urgent supplementation,
within this general constraint:
the resources currently available to LACs and ATSIS are not
equivalent. At the very least the ATSIS indigenous legal aid program needs to
be funded at similar levels to LACs in order to recruit effectively and provide
much needed services.[255]
5.11
A 2003 Australian National Audit Office (ANAO) report also referred to the shortfall in
funding for Indigenous legal aid services:
Other reports on the provision of legal services by ATSILS have
referred to shortfalls in ATSIC funding for legal aid of either $12.4 million
or $25.6 million. Grantee organisations advised the ANAO that in the current
environment service delivery is suffering. ATSILS are slowly becoming less
effective as they are forced to reduce the number of lawyers they employ, or
reduce the range of services delivered, while the demand for assistance is
increasing. This reflects increasing demand for ATSILS services, increasing
costs and relatively flat funding levels.[256]
5.12
The ANAO stated that the development of a
whole-of-government approach (by Commonwealth, state and territory governments)
to address the legal aid needs of Indigenous Australians would provide:
the best opportunity for all providers to achieve a standard
of service delivery that is consistent and appropriate. Achieving this will
require ATSIS to work with funding agencies to provide governments with a
comprehensive picture of the issues involved in providing legal aid to
Indigenous Australians. In addition, unless ATSIS acts to provide realistic
specifications for the services ATSILS are to provide, there are clear risks
that there will be continued reductions in the ability of ATSILS to deliver
quality services.[257]
5.13
ATSIC's submission referred to the report of an audit
in 2003 by the Office of Evaluation and Audit in ATSIC, which found that:
ATSILS are
providing legal services at a cost that is significantly lower than that paid
by mainstream LACs for legal work undertaken on a referral basis by private
practitioners, and that it is achieved at a level of client satisfaction no
different from that reported by LAC clients.
The national
shortfall in ATSIC funding to ATSILS, if their outputs are costed at the same
level as LAC-paid legal work, is $25,605,598.
There is low
morale and high staff turnover among ATSILS practitioners.[258]
5.14
The Katherine Regional Aboriginal Legal Aid Service
submitted that it is severely underfunded:
While our workload has experienced generally a steady but at
times explosive incline, our funding has steadily decreased in both real and
nominal terms. This has [led] to a series of very significant problems for our
clients.
First, areas of law where services need to be provided and where
proactive solutions may be made are constantly being sidelined in favour of
the non-stop rigo[u]rs of providing assistance in crime
Second, there is a shortage of money to pay lawyers
appropriately. This has led in turn to 2 problems: (a) a complete inability to
attract experienced practi[t]ioners (especially in areas outside of crime);
and, (b) very high attrition rates for lawyers within the service. Our regional
location compounds that secondary problem.[259]
5.15
Mr Neil
Gillespie of the Aboriginal Legal Rights
Movement (ALRM) also advised that reductions in legal aid funding has resulted
in its lawyers being paid lower salaries than their LAC counterparts:
In real terms we have had a substantial reduction rather than
just a loss of $50,000. Once you take into consideration the loss of purchasing
power of our dollars you will understand why we exhibit frustration in the
total funding of ALRM. We have staff, for arguments sake, who are on 30 per
cent less than their counterparts in the Legal Services Commission. I was at a
function the other day and I found out that I am on far less than my
counterpartsCEOs in native title representative bodies. The average salary
there is in the vicinity of $140,000. My salary is 50 per cent of that. That is
indicative of the plight in our funding. We cannot afford to pay our people the
dollars they command.[260]
5.16
The North Aboriginal Legal Aid Service submitted that
ATSIC should lobby both the Commonwealth Government and the Northern
Territory government to provide the same level of
service to the remote communities as in Darwin.[261]
5.17
The Victorian Aboriginal Legal Service stated:
Given the myriad studies and research that undeniably
demonstrate the abysmal levels of disadvantage suffered by Indigenous people in
Australia, it
is incredible that an Indigenous organisation continue to be funded well below
the levels of mainstream services.[262]
The need for separate legal services
5.18
In 1980, the House of Representatives Standing
Committee on Aboriginal and Torres Strait Islander Affairs strongly supported
the existence of specialist Aboriginal legal services.[263] The Royal
Commission into Aboriginal Deaths in Custody in 1991 also supported the
continued existence of such services, while making various recommendations on
their operations.[264]
5.19
Submissions to this inquiry also expressed strong
support for specialist Indigenous legal services that provide culturally
sensitive services to Indigenous people.
5.20
Many remote Aboriginal communities endure chronic lack
of health and educational services, overcrowded housing, substance abuse
including severe alcoholism and petrol sniffing, and very high levels of
violence.[265]
Aboriginal and Torres Strait Islander people are widely regarded as the most
disadvantaged group in the Australian justice system.
5.21
The high incarceration rate of Aboriginal and Torres
Strait Islander people is one indication of that disadvantage.[266] The
Victorian Aboriginal Legal Service (VALS)
submitted that:
The legal situation of Indigenous people in Victoria,
as in the rest of Australia,
is appalling. At the end of June 2002, Indigenous people in Victoria
were 13 times more likely to be imprisoned than non-Indigenous people, which
was an 8% increase since June 2001.[267]
5.22
The Coalition of Aboriginal Legal Services NSW (COALS)
noted that:
In August 1995, nearly a third (31%) of all people held in
police custody were Aboriginal Indigenous people also appear in court at a
rate five times higher than that which would be expected given their population
size, and their rate of incarceration is twelve times higher than that of
non-Indigenous Australians. almost one in five prisoners currently
incarcerated in Australian correctional facilities is an Aborigine or Torres
Strait Islander.[268]
5.23
COALS stated that the incarceration rates for young
people were even more disturbing: as at 31 December 2000, 41 per cent of detainees in juvenile
corrective institutions were Indigenous. This rate is almost 16 times higher
than the rate for non-Indigenous juveniles.[269] As Mr
John Boersig
from COALS explained to the Committee, most of those incarcerated are boys.
However:
the recidivism of
Indigenous women and girls is increasing at dramatic rates. This is a very big
issue. Aboriginal youth comprise 42 per cent of inmates around Australia. What that means is in New South Wales, for example, of 350 kids in custody 123
are going to be Indigenous. That is incredible. You walk into the shelter at
Dubbo or the shelter at Grafton and you find that all the kids there are
Indigenous.[270]
5.24
Mr Boersig
told the Committee that, due to the fact that the Indigenous prison population
is increasing by about 8 per cent per year:
there is a great need to maintain representation in criminal
matters. That
of course is broader than simple representation in court, although that is
important. It is not just about being there when someone is sentenced; it is
about the way the matter is conducted, it is about being out there in the field
when people are arrested and it is about prevention. It is getting out there
and educating people about their rights and responsibilities. Ultimately the
point I am making is that in relation to the landscape we also need to find
creative ways to address these issues, apart from money and apart from
recognising this issue of core business.[271]
5.25
VALS stated:
Lack of appropriate levels of funding to Indigenous
organisations that deal with allied problems such as alcohol and substance
abuse, family violence, lack of employment opportunities, education and health
are also contributing factors to the continued over-representation
of Indigenous people in the justice system.[272]
5.26
COALS
submitted that it is because of these social problems and the unique
relationship ATSILS have with the Indigenous community that such services are
better placed to prepare and provide all relevant facts for the sentencing of
Aboriginal offenders.[273] COALS also
argued that legal representation of Indigenous people is best carried out by
Indigenous legal organisations and their peak representative bodies, and
submitted:
that any attempt to mainstream Indigenous legal services would
only serve to exacerbate the already serious problem of the vast over-representation
of Aborigines and Torres Strait Islanders within police and prison populations.[274]
5.27
Mr Frank
Guivarra from VALS argued:
VALS provides around 85 per cent of the criminal
law services and over 65 per cent of the family law and civil law services
required by Indigenous people in Victoria. These figures show that even though there
are other services available, such as legal aid and community legal centres,
Indigenous people still prefer to use VALS. Why is
that? A 1980 House of Representatives inquiry found that Aboriginal and Torres
Strait Islander legal services create a unique relationship of trust and
cultural understanding with their clients that simply could not be emulated by
a large, mainstream legal aid service. This relationship means that Indigenous
people feel more confident with the legal system and are therefore more likely
to access legal representation when they need it.[275]
5.28
COALS submitted that Commonwealth and state governments
have made commitments to the recommendations of the Royal Commission into
Aboriginal Deaths in Custody.[276] These
commitments include funding legal aid services for Aboriginal and Torres Strait
Islander people.[277]
Tendering for Indigenous legal services
5.29
A concern expressed repeatedly by Indigenous legal
service providers during the Committee's inquiry is the proposed introduction
of competitive tendering for Indigenous legal services. Early in the inquiry
the Committee was told that ATSIC/ATSIS was intending to implement a ''contestability"
policy or competitive tendering, in accordance with Commonwealth Government
policy.[278]
5.30
The Commonwealth Governments policy on competitive
tendering is contained in Commonwealth Procurement Guidelines issued by the
Minister for Finance and Administration:[279]
The Government is committed to ensuring an efficient and
effective public sector through the discipline of contestability. Recent
regulatory and legislative changes ensure that Government business activities
do not have net competitive advantages over their private sector competitors
simply as a result of their public ownership. In a contestable environment,
agencies must meet Competitive Neutrality requirements.
Competitive Neutrality policy promotes efficient competition
between public and private business operating in the same market.[280]
5.31
ATSIC advised that its move to competitive tendering will
ensure that service providers are sympathetic to Indigenous people's
circumstances, needs and culture.[281] However,
ATSIC warned:
The successful tenderers alone will not be able to provide all
Indigenous peoples need for legal aid and justice, leaving significant gaps in
service which will require co-operation with
other providers and additional resources.[282]
5.32
In March 2004 the Minister for Immigration and
Multicultural and Indigenous Affairs released the 'Exposure Draft of a Request
for Tender for the Purchase of Legal Services for Indigenous Australians'. In a
media release, the Minister stated that the aim of the reforms is to:
ensure that legal services are tendered in a competitive
environment thereby ensuring that Indigenous people get value for money. A
larger emphasis will also be put on allocating the services to those most in
need.
As we prepare to commit more than $120 million to the purchase
of Indigenous legal aid services from January 2005 to December 2007, there is
no better time for reform.[283]
5.33
The media release also stated that it was expected that
a final draft of the Request for Tender guidelines would be finalised by August
2004, so that the first funds could be released under new contractual
arrangements from 1 January 2005.[284]
5.34
When questioned about concerns raised during the
inquiry about the tendering issue, a representative from ATSIC told the
Committee that:
The way the system is
now has failed Indigenous people regarding justice. The services provided for
Indigenous people just were not sufficient. We had to take into consideration that
the best way to deliver a service was to actually go to tender, with real
outcomes. [285]
5.35 Although it was somewhat unclear from
ATSIC's submission and from questioning in a public hearing, it appears that it
was the ATSIC board that made the decision to tender:
The processes for
arranging service delivery reflect the history of the boards support for
greater contestability in the arrangements for service delivery of legal
services, but since the changes that were introduced from July last year ATSIS,
as the funding agency, is responsible for arranging the service delivery. The
ministers direction to ATSIS makes it very clear that it wants us to move
towards outcomes based approaches to the arrangement of services. In this area,
in light of the strong support that the ATSIC board has given historically to using
tendering as a way of securing better and more effective outcomes from the
resources that we have available, we are moving down that path.
Ministerial direction
encourages us to use modern approaches to arranging service delivery. It is not
mandating us to use tendering in the arrangement of services that we purchase, but in the area of
legal services we believe that it is the most appropriate way to go to secure
the best outcomes.[286]
5.36 The Committee also heard ATSIC's view that
going out to tender would assist it to save money. However, no study was
conducted to indicate that this would be the case.[287]
Criticism of the decision to tender
5.37
The Committee received evidence indicating serious concern
within ATSILS that competitive tendering would mainstream the provision of
legal aid services, resulting in the disempowerment of Aboriginal communities.[288] Some ATSILS
were also concerned that mainstream legal services are not approached by
Indigenous clients because of language and cultural barriers.[289]
5.38
ATSIC itself stressed the importance of ATSILS as
preferred legal service providers compared with LACs, CLCs and private legal
services:
The reasons for Indigenous peoples preference for approaching
Indigenous-specific organisations rather than mainstream service providers are
multi-faceted. However, it is essentially the ATSILS ability to cater for the
cultural needs of Indigenous clients that render them the most suitable avenue
for Indigenous people in need of legal aid, particularly in the areas of:
-
Dealing with language
difficulties;
-
Representation
and explanation of the law in the face of what is often limited understanding
of the justice system by Indigenous people; and
-
Advocating and
negotiating with relevant government authorities for services to Indigenous
people.[290]
5.39
COALS argued that the effectiveness of ATSILS in
meeting Indigenous legal needs:
is primarily attributable to their accessibility and
acceptability to the Indigenous population, their community-based structure,
and the specialised nature of the legal service they provide These
organizations have earned their place as an essential part of the legal system
of this country, and they should continue to be supported in their endeavours.[291]
5.40
Further, COALS expressed its strong objection to any
suggestion to merge ATSILS with other legal service providers. Instead, it
urged that:
consideration be given to expanding these organizations and
their representative bodies such that Indigenous participation within the
justice proves be granted. It is submitted that any attempt to mainstream
services to Aborigines and Torres Strait Islanders will inevitably lead to
disempowerment of Aboriginal communities.[292]
5.41
COALS emphasised that Indigenous participation and
self-determination in the provision of legal services are vital, since this:
facilitates the building of trust between organizations and
Indigenous communities. This, in turn, increases the level of service
acceptance by those communities and contributes to their long-term
sustainability. This focus on long-term sustainability of Indigenous programmes
is the most effective way in which the negative effects of dispossession and
colonization, including high rates of Indigenous incarceration and high levels
of Indigenous deaths in custody, can be addressed.[293]
5.42
COALS also argued that ATSILS' approach to assessing
legal aid was more appropriate than that of the LACs:
In line with the object of maximising the access of all Indigenous Australians to
appropriate legal representations, ATSILS guidelines are relatively flexible
and discretionary. To a large extent, they avoid the formal and
administratively intensive assessment procedures outlined in the Legal Aid
Commission's guidelines in favour of more personal and culturally appropriate
consultation between staff and clients In accordance with its objective of
maximising the participation of Indigenous people in legal processes, the
approach adopted by ATSILS more effectively promotes the rights of Indigenous
people to empowerment, identity and culture, and in doing so, reduces the
disproportionate number of the Indigenous population involved in the criminal
justice system.[294]
5.43
Mr Neil
Gillespie from ALRM told the Committee that
the basis on which any output-based service delivery of legal aid services is
to be applied is unclear:
We have no problem with tendering. We have no problem with
output based service delivery. However, we would like to understand the basis
on which we are expected to provide the services. We have, for a long time,
been seeking a revision and a realistic approach to performance and also to
service delivery. The systems that we operate at the moment do not help us in
providing a better service to our clients. This is highlighted, again, in both
ATSICs own internal document and the National Audit Office report.[295]
5.44
VALS also questioned the
appropriateness of the decision to tender:
The Senate Inquiry into competition policy raised questions
about the appropriateness of extending competition policy to areas of social
welfare provision. The public interest test should be applied when considering
whether to tender ATSILS. There is ample evidence that the services are poorly
funded and working with disadvantaged communities.[296]
5.45
VALS described the Exposure Draft as
'a formula designed to have ASTILS squeezed out of existence'.[297] The
National Association of Community Legal Centres (NACLC) was even more critical:
The present arrangements with ATSILS have been developed around
concepts of empowerment, community-based services, flexibility in service
delivery, the preventative strategies of running test cases and law reform
activities, and the need for broad based assistance such as information,
education and research. All these are absent in the Exposure Draft.
The Exposure Draft in its present form will make it difficult
for ATSILS to win tenders and appears to have been designed to maximise the
opportunities for private law firms to do so. As such, the continued existence
of ATSILS as specialist community based Indigenous organizations seems
unlikely. Consequently, it appears to undermine the right of Indigenous
Australians to self-determination.[298]
5.46 In response, a representative from ATSIC
told the Committee:
This is not necessarily
going to go to private services. We would like to think that Aboriginal
services will quote for these and get these servicesnot private services. We
are thinking along the lines of rules that they will have to understand
Indigenous communities, and the majority of the people that understand
communities will be the Aboriginals services now.[299]
5.47
The NACLC argued that arrangements for providing
services to Indigenous clients were contrary to recommendations of the Royal
Commission into Aboriginal Deaths in Custody.[300] Further,
the Exposure Draft was 'not a commercially realistic document'[301] and its
proposals 'are designed to implement the agenda to mainstream aboriginal
services'[302]
and shift costs from the Commonwealth to the states, with the following results
predicted:
The Exposure Draft will not result in the delivery of quality
legal services to Indigenous people nor will it improve access to justice for
these the most disadvantaged people in our community. The ideological agenda
driving this proposal is likely to have a number of expensive and damaging
consequences.[303]
5.48
The NACLC also claimed that:
The need for targeted
legal services for Indigenous people and the effectiveness of the service
delivered have rarely been questioned, even though, at times, there have been
concerns about the governance of ATSILS. All the reviews of ATSILS have
concluded among other conclusions, that the fundamental issue affecting ATSILS
has been the lack of funds. The level of service delivery, given this
under-resourcing, the climate of instability created by the many reviews of
ATSILs and the overwhelming need, is outstanding.[304]
5.49
Of particular concern to the NACLC was that there is no
requirement in the Exposure Draft that organisations be Indigenous or employ
Indigenous staff. In fact, the NACLC argued that, in its current form, the
Exposure Draft would make it difficult for ATSILS to win tenders as it appears
to maximise the opportunities for private law firms. This means that the
continued existence of ATSILS as specialist organisations is unlikely and will
result in an undermining of the right of Indigenous people to self-determination.[305] Further,
the NACLC claimed that:
Replacing Aboriginal legal services with white organizations,
possibly private practices of lawyers, make it less likely that Aboriginal
people will seek assistance. It is widely known and recognised that in the vast
majority of cases Aboriginal people prefer to use Aboriginal managed legal
services. Access to justice will thus be further restricted for Aboriginal
people.[306]
5.50
The NACLC also argued:
The benefits of tendering are often exaggerated and the costs
and other unintended consequences are often underestimated Studies such as the
Office of Evaluation and Audit (ATSIC 2003) indicated that ATSILS are already
under funded and cheaper than Legal Aid Loss of supplementary funding, pro
bono support and in kind assistance associated with moving services to private
practitioners would be likely to cancel any supposed cost savings.
The tender as proposed does not offer any transparent value-free
method of comparing the quality of the service being offered. Often the end
result of a tender process for human services is poor quality, less appropriate
services.[307]
5.51
Strong criticisms were also voiced by the Australian
Legal Assistance Forum (comprising the Law Council of Australia, the Community
Legal Centres, National Legal Aid and ATSILS)[308] and Western
Suburbs Legal Service Inc.[309]
5.52
Another aspect of the Minister's recent announcement
was that a means test would be introduced for anyone with an income over
$40,000. CDEP (Community Development Employment Projects) participants
and those receiving Centrelink benefits would be exempt.[310] The NACLC
argued that this would increase costs for legal services:
The eligibility requirements appear to enable the vast majority
of Indigenous clients to receive a service. However the means test outlined is
broader than that used by legal aid commissions and ATSILS will be required to
administer it before advice or duty lawyer services are provided. The
administration of the means test will add new costs to ATSILS. It appears that
for the very few who will not qualify, the introduction of this requirement is
an unnecessary expense. There has been no provision made for the additional
resources required to manage these requirements.[311]
Indigenous women's issues
5.53
The special needs of Indigenous women have been
increasingly recognised in recent years, particularly since the ALRC's 1994 report,
Equality Before the Law: Justice for
Women, recommended the establishment of specialist legal services to meet
their needs. The report identified the lack of access to culturally accessible
legal aid for Indigenous women and determined that Indigenous women are the
most legally disadvantaged group in Australia.[312]
5.54
The Committee received evidence that, almost ten years
after the ALRC report, Indigenous women remain chronically disadvantaged in
terms of their access to legal services, awareness and exercise of their legal
rights, and domestic violence support.[313]
5.55
VALS advised that the imprisonment of
Indigenous women has increased 250 per cent over the past ten years, making
them the most imprisoned group in Australia.[314] In Victoria,
80 per cent of women who are imprisoned are mothers, mostly with young
children. Such high rates of incarceration mean that:
the imprisonment of Indigenous women not only impacts on offenders,
but also their children and their communities.[315]
5.56
Mr Frank
Guivarra referred to some of the systemic
reasons behind the high rate of incarceration of Indigenous women:
A lot of it revolves
around the poverty trap: shoplifting, social security fraud and stuff like
that. Drugs have also been a factor for a high percentage of the people
incarcerated.
Centrelink overpayments
and people not notifying. They are saying, Theres the money; its great, and
then, all of a sudden, they are caught and they cannot pay. It is the
nonpayment of fines and stuff like that; they cannot make restitution, so the
person has got to be locked up.[316]
5.57
The Wirringa
Baiya Aboriginal Womens Legal Centre argued that many Indigenous women
are imprisoned because they have fought back against abuse.[317] The Top End
Womens Legal Service referred to the high levels of violence against many
Indigenous women, including aggravated and sexual assault in circumstances
where weapons are used. Meanwhile support and assistance, including legal assistance
to remote indigenous women in relation to violence, is seriously inadequate.[318]
5.58
Several submissions and witnesses raised particular
concern about the level of violence within Indigenous communities. Ms
Marilyn Wright
of the Women's Legal Service SA expressed the view that domestic violence is
about power imbalance:
Domestic violence is
about power and it is about an abuse of that power. It is about lack of equal
relationships. I guess that is why women, particularly Aboriginal women and
women whose second language is English, are at a disadvantage because those
power relationships may be accentuated. It is about the society we live in.[319]
5.59
However, Ms Winsome Matthews from the National Network
of Indigenous Womens Legal Services (NNIWLS) expressed the view that violence
in Indigenous communities encompasses more than domestic violence within
families and power imbalances:
we are dealing with
family and community violence. That refers to a broad spectrum of events that
all people now need to get their heads wrapped around, because domestic
violence is not something that occurs in our communities; it is family and
community violence. It is intergenerational, it is same gender, it encapsulates
suicide and homicide and it also encapsulates the vast spectrum of
dysfunctional community syndromewhich is about the rape and killing of elders
and children. This is how bad family violence is. It is not about the power
imbalance between a man and woman.[320]
The extent of funding
5.60
Ms Leanne
Matthews from NNIWLS argued that more
funding must be allocated to the needs of Indigenous women:
One of the things we have been told consistently is that there
is just not enough money in the Attorney-Generals Department to enhance
current activity or to introduce a new scheme. So it comes back to the
Commonwealth governments budget priorities: how much of a priority are the
needs of black women in this country, especially when we are dying at the hands
of our own community through violence? In New South Wales
alone, 52 per cent of murders are those of Aboriginal women who have been
beaten to death.[321]
5.61 Ms Matthews explained how the NNIWLS is funded:
We came about through
the 1996 last-minute funding allocation of the Labor government, which placed a
whole heap of money into the National Network of Womens Legal Services, which
are predominantly mainstream and non-Aboriginal. They were given that money to
strike an Indigenous women program because of the evidence and findings of the
Equality before the law report, which showed the vast disadvantage that
Indigenous women were suffering.[322]
5.62
Ms Mathews
explained that the funding is provided through the Attorney-General's
Department, and noted:
We have attained other money to enhance our position and to
expand our network through philanthropic grants. The Myer Foundation and the
Reichstein Foundation are two organisations that have supported us quite well.
We were able to develop the network to a position where it could become
incorporated so that we could get real change happening, as there was a lack of
infrastructure for Indigenous women and for their policy and political lobbying
avenues.[323]
5.63
There are currently eight federally funded Indigenous
women's legal service projects which are sponsored by generalist women's legal
services and community legal services. The NNIWLS told the Committee that
Wirringa Baiya Aboriginal Women's Legal Service (funded by the NSW
Attorney-General's Department) is the only independent Indigenous legal service
in Australia.[324]
5.64
The following table shows the extent and distribution
of Commonwealth funding for Indigenous women's legal services in 2002/03.
Table 5.1 Commonwealth community legal services
allocation for Indigenous women's legal services 2002-03
Jurisdiction
|
|
$ Amount
|
NSW
Womens Legal Resource
Centre
|
|
244,166
|
QLD
Womens Legal Service
|
|
137,317
|
North Queensland Womens Legal Service
|
|
158,443
|
|
Qld total
|
295,760
|
SA Womens Legal Service
|
|
95,065
|
WA
Geraldton Resource Centre
|
|
58,096
|
Kimberley Community Legal Service
|
|
58,096
|
Pilbara Legal Service
|
|
58,096
|
|
WA total
|
174,228
|
TAS
Womens Legal Service
|
|
42,252
|
TOTAL FUNDING
|
|
851,531
|
Source: NNIWLS, document tabled on 12 November 2003.
5.65
The Committee notes that the total amount of funding is
less than a million dollars (the Attorney-General's Department advising that
the total in 2003/04 had increased to $0.9 million),[325] and that
there is no Commonwealth funding for projects in Victoria,
the NT or the ACT.
The need for a review
5.66
The NNIWLS recommended that funding be allocated for a
major national solution-focused review of Indigenous womens legal needs, available
legal services and any gaps. Such a review would assist with future policy
formulation, service targeting and quality improvement and should be undertaken
in partnership by an office such as the Human Rights and Equal Opportunity
Commission's Indigenous Social Justice Commissioner, with the NNIWLS.[326] At the Melbourne
hearing, Ms Winsome Matthews of the NNIWLS added that ATSIS should be included
as a necessary component of the review.[327]
5.67
ATSIC also recommended that a comprehensive national
study be undertaken to accurately determine Indigenous womens needs for legal
aid and access to justice:
It is clear that Indigenous women are not being appropriately
served by existing legal aid services but the extent and nature of their need
for services has not been adequately identified or analysed. Therefore, an
analysis of Indigenous women's legal needs is required and a strategy developed
to address them.[328]
5.68
When questioned as to whether ATSIC or ATSIS itself
might be best placed to conduct such a study, a representative from ATSIS
stated:
we do not have a
comprehensive national database of unmet need, particularly as it relates to
female Indigenous people. It is an important gap. We are between a rock and a
hard place with our legal services. As you pointed out, almost 90 per cent of
its business is focusing on criminal matters.[329]
5.69
The Committee notes that some ATSILS have implemented
forums to help Indigenous women gain access to adequate legal representation:
In order to make its service more accessible to women, in 2002 VALS
made a successful application to the Department of Justice for an Indigenous
Womens Justice Forum Coordinator. The forums provide a space for Indigenous
women to explore justice issues affecting them such as family violence and
access to adequate legal representation. The aim of the forums is to link
information about programs and services across communities and organisations. They
also provide the opportunity to develop Indigenous community-controlled
strategies to help resolve issues affecting women and their families.[330]
5.70
At the Port Augusta hearing, Ms
Marilyn Wright
of the Women's Legal Service SA told the Committee that change should come from
Indigenous women themselves:
We have seen how strong the elders in Coober
Pedy have been recently regarding the mining
issues, the dumping of uranium. They are an incredibly strong group of women.
So the potential is there within the communities to solve the problem, but it
is a matter of having the support, the resources and access to services.
If we are talking about change in Aboriginal communities, it
has to come from the actual communities themselves on the basis of self-determination,
and most of the communities have incredibly strong groups of women.[331]
5.71
Ms Winsome Matthews from the NNIWLS agreed:
it is about the
localisation of authority and the power being given back to the people. There
are a few principles by which Aboriginal people are now well placed to identify
what their problems are but also the solutions to those problems and how
government should be facilitating the resourcing of such. This is a view we
take in New
South Wales. We are looking at community justice groups being established across
the state to become the point of reference for the community and also policing
and criminal justice authorities about legal issues and conditions in those
communities.[332]
Family violence prevention services
5.72 At the Port Augusta hearing, Mr Mark Forth from the Warndu Wathilli-Carri Ngura Aboriginal Family Violence Legal
Service noted that Indigenous communities have their own particular
complexities when it comes to family violence and that community involvement is
essential in addressing family violence issues:
Family violence does
have its own particular issues and there are certain ways of dealing with
aspects of it Particularly in Indigenous communities, it requires the
involvement of the people in the community itself, because they want to get
involved in order to rid themselves of this curse, so to speak. Although as a
practitioner I have a lot of confidentiality issues, we certainly call upon
many peoplestaff members and people outside the officefor help in dealing
with the issue. So, while it is certainly a difficult legal problem, it is also
a community problem; and it is something the community wants to address. My
submission to the committee, from my experience and contacts I have with people
in remote and rural communities, is that there is a very big unmet need for
help in this area which we have limited resources or ability to deal with.[333]
5.73 The Committee heard that ATSIS has funded 13
Family Violence Prevention Services in remote, rural and regional areas, with
funding in 2003/04 of $4.8 million. As Mr Bernie Yates of ATSIS told the Committee:
We have been
progressively trying to address the situation of women in the system with the
establishment of family violence prevention legal services It is a separate
program but it is an integral part of the total picture of how you try to meet
some of the needs in this area.[334]
5.74 The following table shows the funding for
each service, broken down by base funding and funding for a sexual assault
worker. Two services have not yet received funding for such workers because
their project proposals are still to be finalised. There are services in each
state and territory, except Tasmania and the ACT.
Table 5.2 Family Violence
Prevention Services
FVPS Provider
|
Location
|
Base Funding
|
Sexual Assault Worker Funding
|
Central
Australian Aboriginal Family Legal Unit
|
Alice Springs
|
$313 770
|
$48 115
|
Walanbaa Yinnar Wahroo Walgett Family Violence Prevention Unit
|
Walgett
|
$324 002
|
$34 334
|
Tharpuntoo
Family Violence Unit
|
Cairns
|
$294 002
|
$46 884
|
Many
Rivers Violence Prevention Unit
|
Kempsey
|
$323 969
|
$57 952
|
Darwin Family Violence Prevention Unit
|
Darwin
|
$320 980
|
|
Fitzroy
Crossing Family Violence Prevention Unit
|
Fitzroy Crossing
|
$294 002
|
$33 652
|
Yamatji
Family Violence Prevention Unit
|
Geraldton
|
$294 002
|
$27 622
|
Thungula Goothada Family Support Legal Centre
|
Kalgoorlie
|
$305 502
|
$31 500
|
Katherine Aboriginal Families' Support Unit
|
Katherine
|
$305 502
|
$62 646
|
ATSIC
Family Violence Prevention and Legal Service
|
Melbourne
|
$300 000
|
|
Mt Isa Indigenous Families Support Unit
|
Mt Isa
|
$314 002
|
$37 129
|
Warndu Wathilli Carri Ngura Aboriginal Family Violence Legal Service
|
Port Augusta
|
$306 126
|
$50 000
|
Kamilaroi
Family Violence Legal Support Centre
|
Moree
|
$336 857
|
$36 458
|
Source: ATSIS, Submission
111, pp. 2-3.
5.75
The NNIWLS spoke highly of the services:
Services are reporting a high level of community acceptance and
many ATSIC regions are pressing for the establishment of [Family Violence
Prevention Units] in their area. The Network considers that this is a dramatic
breakthrough and it is critical that there is a strong and supportive
response While there will probably never be enough [Units] there is the
strongest possible case for more of these services to be established.[335]
5.76 This view was supported by other witnesses. Ms June Lennon of the Warndu Wathilli-Carri Ngura Aboriginal Family Violence Legal
Service told the Committee that the service was well-known within the Port
Augusta Indigenous community:
If one of our family, if you like, is experiencing family violence or
doing it, we try and refer them to this place because we think
thatparticularly as we focus on the victims of family violence and their
childrenthey are more likely to go there if they know about what the service
offers. Sometimes when you have the word legal in the description of your
service, they are not really sure of what type of legal service is provided.[336]
5.77 Ms Lennon continued:
Once people started learning about the
service, and I think a lot of it happened through word of mouthpeople were able
to say that they had used our service and they were helped in whatever waythat
promoted our service even more. Also, our staff network with most members of
the Aboriginal community, basically on a daily basis. They only have to walk
down the street and people access them. We have been receiving through the
community more inquiries about what we actually provide. I think that is
because we have been there, we have been operating, and people have come in for
a number of matters and we have been able to explain to them why we are
actually there. I feel that they are accessing our service more comfortably now
than when they first started to.[337]
Conflict of interest
5.78
One issue which was brought to the Committees
attention numerous times was the conflict of interest in legal aid matters
involving Indigenous people where more than one party applies for legal
assistance. This is particularly relevant for women who are denied access to
assistance because their partner has received assistance first.
5.79
ATSIC submitted that:
ATSILS provide approximately 89% of the advice and
representation for criminal matters. This trend has discouraged Indigenous
women from approaching ATSILS for assistance initially, particularly given the likelihood
of ATSILS defending the perpetrator. The problem has often been attributed to
the "first-in, first-serve" nature of ATSILS work. The lack of
alternative service providers in many of the jurisdictions in which ATSILS
operate means that even if the victim sought ATSILS assistance first, if refused,
they at least have the option of seeking police assistance. However were the
ATSILS to turn away the perpetrator, he would have nowhere else to seek
representation. ATSIS acknowledges that wherever possible LACs have attempted
to represent indigenous women in cases of conflict where the partner is
represented by the ATSILS. However it remains that in many instances the victim
lacks any legal advice beyond that provided by the police.[338]
5.80
The Top End Women's Legal Service submitted that while
steps had been taken in recent years, Indigenous women were still disadvantaged
by the focus by LACs and ATSILS on representing offenders:
They are generally unable to assist victims of crime. Steps have
been taken in the last few years to address the problem. ATSIS now funds
Aboriginal Family Violence Prevention Units in Alice Springs,
Katherine and Darwin.
The Northern Territory government
funds domestic violence legal units in Alice Springs and
Darwin. These are commendable
efforts. However, there remain enormous gaps in service provision. To give just
a few examples, where is the assistance for indigenous women living in violent
towns such as Tennant Creek or Borroloola or communities with high rates of
violence such as Maningrida or the Tiwi
Islands?[339]
5.81
At the Melbourne
hearing, Ms Winsome Matthews of the NNIWLS went further, informing the
Committee that legal services may not be provided to a woman if there is the potential for a conflict of interest:
Traditionally [Aboriginal legal services] have been [gender] exclusive
to the point where service will not be provided to a woman if there is a
potential that her husband may be a client in the future.
There have been a
number of examples of that in rural New South Wales, especially in relation to the Walgett
violence prevention unit and the difficulty they had in provision of service
prior to the establishment of that unit.[340]
5.82 An ATSIC representative also recognised the
problem during the first Canberra hearing:
In the past we have
addressed the perpetrator and not the innocent person. The innocent person has
usually been covered by the prosecutor, but we know that this system is not
good for us and we are trying to address itit is going to take us timewith
the little money we have got.[341]
5.83
Ms Katharine
Hairsine from VALS told the
Committee that Indigenous women often feel they cannot get legal assistance or
representation even when this is not the case:
A lot of women feel
that if there is a conflict of interest we will not represent them.
Anecdotally, a lot of women within the community do not think that they can get
representation from the Aboriginal Legal Services.
Anyone who came to us
would not be unrepresented. In the past we also made funding applications to
set up a separate womens annexe. That would have got rid of that conflict of
interest but we were unsuccessful in that application. There definitely are
women who would not apply to VALS because
they assume that they would not get representation, even though they would.[342]
5.84
Ms Hairsine
stated that VALS took measures to address such situations:
For instance, if you have a family law case where the husband
has already had representation by VALS it means the woman
cannot be represented by VALS. But VALS will
ensure that representation for that woman is provided by another legal service
provider, and VALS will fund that. It means that the woman
does not go without representationbut it will not be by VALS,
and that means people like client service officers. Also, having Indigenous
staff in the organisation can make it easier for people to use the service.[343]
5.85
Mr Chris
Charles explained that the ALRM had a
slightly different approach:
The ALRM policy has always been that if there are parties in
dispute, as in one family feuding against anotherwe have literally had cases
like that, with multiple assault charges laid between family members; I had
quite a lot of it in Ceduna some years agoALRM will not act at all. We will
brief out both sides or ask both sides to get independent representation. Our
view is that if we are seen to take sides by representing one side at the
expense of another we are picking sides within the community and we do not want
to do that. That will decrease access to our services by both families later
and we do not want that to happen because we would like both sides to be able
to come to us later. We do not want to pick sides.
On the other hand, there has been a change in our policy
recently whereby we have given priority to assistance being given to victims of
domestic violence and women. Now if we have a domestic violence situation and
the woman comes to us first we will act for the woman first and the male
perpetrator will have to go elsewhere. That is a recent change in our policy
which was consistent with our recognition of the need to look after the
interests of women and domestic violence victims.[344]
5.86
Mr Charles
added, however:
We have a briefing out budget of about $100,000 to $150,000 a
year, which is, frankly, ludicrous. We do not have the resources to pay for the
separate representation of the many people who we think under our properly
formulated policies ought to be separately represented. We do not ever get a
budget sufficient to enable us to provide for their representation and that
gives rise to the Legal Services Commission picking them up.[345]
5.87
Mr John
Boersig from COALS told the Committee that:
In New South Wales
[the issue of conflict of interest] is addressed by saying in the policy
framework that the first person in is the person who gets the advice and
assistance. That is a very difficult policy to implement at times, particularly
when the core business for many organisations is criminal law.[346]
5.88
The Committee received evidence that Indigenous women
experience significant obstacles within their own communities that seriously
affect their rights and their ability to access justice. ATSIC recognised these
difficulties:
The effect of delayed access to justice for Indigenous women is even
more severe given the cultural inhibitions in their own communities such as beliefs
in the sanctity of kinship and fear of community retribution. If they overcome
this threat and seek representation, only to be met with refusal by the under-resourced
ATSILS the lesson can be devastating. These considerations have often led to reluctance
in seeking legal advice by many women.[347]
5.89
This means that:
reference to the statistics of clients accepted or refused by
the ATSILS does not present the real picture of the legal needs of indigenous
women, particularly in relation to family violence.[348]
5.90
At the Melbourne
hearing, Ms Winsome Matthews of the NNIWLS expressed a similar view:
Our remote and rural
peoplethe women who work in those locationshave the added tension of dealing
with law men and their right under customary law.
We are pretty much
talking about those locations where traditional law is still strongand I am
talking more about where the patriarchal systems of law of custom is activeand
the struggle that our own women have in addressing those issues.
It is not just about
legal disadvantage of women; it is about the overall role of Aboriginal women
in society and about how disregarded, underestimated and simply not considered
we are.[349]
5.91 Ms Matthews told the Committee that Indigenous women's groups are attempting to
make positive changes to ensure that the rights of Indigenous women are upheld
and actively promoted:
We are also looking at
embedding an Indigenous perspective into current areas of investigation and
review, because of how absent it has been. Often you get an Aboriginal
perspective that is predominantly represented by the Aboriginal Legal Service
which never upholds the perspective or legal needs or concerns of Indigenous
women.[350]
5.92
ATSIC argued further that:
These observations indicate that current arrangements for
Indigenous womens access to justice are poor, especially in remote areas.
However while ATSIC/ATSIS and its ATSILS committed to stamping out family
violence, the prioritising of scarce resources to criminal matters means that,
in practice, victims are not assisted while those responsible, are. Within
existing resources ATSIS is limited in its capacity to give its own policies
concrete substance. This contradiction will be overcome only through additional
resourcing of ATSILS and Indigenous women specific legal service providers.[351]
Alternative dispute resolution
5.93
In 1980 the House of Representatives Committee
encouraged ATSILS to make more effective use of alternative legal aid services,
particularly in metropolitan areas where such services may be available. It
also recommended that ATSILS should direct more resources towards rural areas
where such services were unavailable.[352] The
Committee was interested in the extent to which such services were needed.
5.94
ALRM supported the use of alternate dispute mechanisms
as they are similar to how disputes are dealt with in traditional Indigenous society:
ALRM believes that alternate dispute resolution mechanisms such
as mediation and conciliation could prove useful within Indigenous communities
because they are more similar to how disputes would be traditionally resolved.[353]
5.95
At the Sydney
hearing, Mr John
Boersig from COALS noted the success of
family conferencing and the importance of "local solutions" in
Indigenous communities:
Family conferencing has
a fascinating history. It started in New Zealand to address the issues of Maori people. It
developed in New Zealand and has been imported into New South Wales under the Young Offenders Act. Its value is
that it keeps children out of court and tries to find solutions between victims
and offenders, in the context of minimising harm to the community.
In New South Wales they are trying to bring Indigenous people
in to be involved as conference convenors. There are wider issues about elder
involvement that are addressed in both circle sentencing and youth
conferencing. There will always be a struggle with a one-size-fits-all system
in addressing particular local needs. As you have no doubt heard from
Indigenous people, they are very much interested in local solutions and local
needs. The development of youth conferencing needs to take that into account
and provide local solutions.[354]
5.96 Ms Matthews from the NNIWLS noted the success of community justice groups in the NT
and far north Queensland:
they have been
extremely successful with their community justice groups. The community of
Yuendumu in the Northern Territory have extended their community justice
groups to also have a traditional high court and a senate to deal with local
issues, particularly the legal matters of the people. They have expanded to
also look at the legal context of other social issues that they are confronted
with It is a move that is rising amongst Aboriginal communities, and
community justice groups in New South Wales have a legislative base under the
alternative justice process, which is complementary to the circle-sentencing
initiative.[355]
5.97 However, some notes of caution were sounded.
Mr Mark Forth from the Warndu Wathilli-Carri Ngura Aboriginal Family Violence Legal
Service informed the Committee that:
We do try to use
mediation quite a bit. Very rarely is it successful, I should add. Usually
those people who get into these intractable situations are not the same sorts
of people who are able to find solutions at mediation. That is not say it never
happens; it does happen occasionally. Usually you get a fairly good inclination
of that right at the beginning and you try to find some solution without
heading off to court. Most of the time, regrettably, you really have to at
least commence some sort of legal action and get something under way before one
of the parties realises you are serious. That, regrettably, is usually the
state of play in these matters.[356]
5.98 However, Mr Forth added:
Regarding the success
rate for mediationand this is just off the top of my headless than a handful
have succeeded at mediation to resolve some sort of issue. I find that that is
not dissimilar to the sort of rate you get in the non-Indigenous community.[357]
5.99
The Redfern Legal Centre also cautioned against the use
of mediation in family law matters where violence is involved:
Legal Aid eligibility requirements and the procedures of the
Family Court are heavily focussed on counselling and mediation. Unrepresented
women in fear of violence are at risk of agreeing to unsuitable arrangements
especially with regard to contact with children, because of fear of the
perpetrator. Those who are too scared to participate are at risk of becoming
ineligible for assistance. While mediation and counselling are often
appropriate and constructive ways of resolving family problems, proper
representation of the parties is essential for proper protection of the safety
of women and children.[358]
Other access to justice issues
5.100
As well as the lack of available legal services,
various barriers have prevented Aboriginal and Torres Strait Islander people
from accessing legal aid. The most common barriers include language issues,
lack of cultural awareness amongst service providers, telecommunications issues,
and transport to and from remote areas.
Language
5.101
The Top End Womens Legal Service advised that a common
barrier to accessing legal aid representation is language as most of their
clients have English as either a second, third, or fourth language.[359] Literacy
rates are also low amongst clients who are socially and economically marginalised.[360]
5.102
Language barriers are not peculiar to remote Aboriginal
communities. There are also misunderstandings about Aboriginal English which is
spoken quite widely in metropolitan Aboriginal communities:
Aboriginal English is a language in Australia
that must be recognised as equal to English, and non-Aboriginal workers need
training in this language and its nuances to better engage with Aboriginal
women and children escaping domestic violence and all forms of sexual assault.[361]
5.103
The Yilli Rreung Regional Council referred to the large
number of clients of the North Australian Aboriginal Legal Aid Service who
speak an Indigenous language at home:
The Australian Bureau of Statistics, 2001 Census data reports
that 11.8% of Indigenous people residing in the Darwin
region and 84.5% of Indigenous people residing in the Jabiru region speak an
Indigenous language at home. In some
communities serviced by NAALAS, English is reserved for speaking with
non-Indigenous people. Indigenous individuals residing in remote areas may use
English as a second, third or fourth language. A large number of NAALAS clients
speak an Indigenous language at home.[362]
5.104
The Yilli Rreung Regional Council also noted that:
The use of an interpreter, where required, is vital to effective
provision of legal services. However, it can be time consuming to organise for
an interpreter to be present when providing a service to clients and where an
interpreter is used, more time is needed. This impacts on the resources which
the service provider uses and needs.[363]
5.105
The Committee notes that in the recent Budget the
Government announced that the Aboriginal Interpreter Service would be extended
in the Northern Territory.[364] While this
is a welcome initiative, more remains to be done.
Cultural awareness training
5.106
ALRM submitted that understanding Aboriginal society is
an integral part of delivering affective legal aid services, particularly in
communities where the society is organised in a fundamentally different way to
western mainstream society.[365] ALRM argued
that funds were needed to educate the community about Indigenous culture, in
order to help dissolve misconceptions of Indigenous people in the justice
system.[366]
There was also a need for culturally appropriate legal practitioners and
organisations that understand the Indigenous community.[367]
5.107
This view was also expressed by ATSIC which recommended
that:
cultural awareness training is made available for
non-Indigenous lawyers, particularly those working in LACs.[368]
5.108
The Yilli Rreung Regional Council emphasised the
importance of understanding cultural differences:
The society of the client group is often organised according to
traditional custom and social structures. Many clients in the region practice
customary law and recognise customary law authority structures. The provision
of legal education, advice and representation to this group is a complex and
time consuming exercise which requires the legal service to recognise and work
within the existing social structures.[369]
5.109
However, it is not just a question of ensuring that
lawyers are appropriately trained. Culturally appropriate services must be
provided in other parts of the justice system. Ms
Naomi Brown
representing the Community Legal Centres Association (Western
Australia) Inc referred to the case of an Indigenous
woman from a rural area who had to travel to Perth
for a welfare report:
there were no Indigenous court counsellors. There is not
necessarily a process to decide whether, if the counsellor is male, it is
appropriate for the woman and/or her children to talk with that person about,
for example, issues of sexual abuse. If you are looking at the systems, there
is discrimination against not only Indigenous people but also people of
culturally and linguistically diverse backgrounds. These sorts of questions are
not even looked at: how are we going to get this story; is there an appropriate
way of actually getting the story about the issues in the family; do we have an
understanding of how this family works? The women I spoke with in Western
Australia in relation to that were very strong about saying, There need to be
services that are culturally appropriate, and that includes access to legal
aid services as well. There are no Indigenous liaison officers attached to
Legal Aid, not even in remote areas where there [is] a wealth of Indigenous
culturesthere are for Aboriginal legal services; but there are not for legal
aid services.[370]
Telephone advice and videoconferencing for remote
communities
5.110
The Top End Womens Legal Service submitted that in
many remote communities Aboriginal people cannot access the most basic
services, as very few Aboriginal people own a phone or can access a public
phone to ring the 1800 numbers for government funded legal advice and
services.[371]
Moreover, in some places, as the Alpurrurulam Community Government Council
noted:
[Residents'] only access is through the use of Council
telephones. Privacy cannot always be guaranteed and waiting for return phone
calls involves lengthy waiting periods.[372]
5.111
Many people in remote communities do not know about the
various civil authorities and therefore are less likely to contact them.[373] Some
Aboriginal communities when asked about use of telephone advice services in
their communities noted other problems:
If general legal advice is available by telephone the Council
has not been given this information Country-men do not know what questions to
ask, and therefore assistance is required for office staff and Managers and
more visits from legal representatives.[374]
5.112
Some Indigenous legal providers also saw access to
telephones or computers with Internet access as ineffective.[375] Further,
videoconferencing facilities may not be always be appropriate:
ATSIC representatives of Indigenous clients living in remote
communities have expressed concerns that the use of videoconferencing
facilities is not a substitute for face to face contact and does not
necessarily translate to an increase in access to justice. For example, the video conferencing facility
in the community may still be hundreds of kilometres from clients living in
outstations. Those clients may have difficulty in travelling to the community
for a videoconference on a designated time and date.[376]
5.113
More general concerns about reliance on such technology
in rural and remote areas are discussed in more detail in Chapter 6.
Transport to and from remote areas
5.114
In 1980 the House of Representatives Committee found:
Geographical isolation is a major factor affecting the access of
Aboriginals to legal aid. In remote areas, Aboriginals lack of access to legal
assistance can be attributed partly to the absence or limited number of legal
practitioners in these areas.[377]
5.115
Legal aid lawyers and staff are still prevented in many
cases from meeting face-to-face
with their clients in regional and remote areas. Travelling to client locations
can be costly. For example, North Australian Aboriginal Legal Aid advised the
Committee that over $86,000 is required each year to cover lawyers travel and
accommodation to provide services to clients in remote communities.[378]
5.116
Ms Leanne
Matthews from NNIWLS explained the practical
effect of living in a remote community:
To give a quick scenario, in some remote towns there is no legal
service. Legal providers, such as legal aid and the Aboriginal Legal Service,
fly in half an hour prior to court commencing. They barely have enough time to
speak with their clients and obtain a brief about the charges and to explain
what options are available to them. Often they are advised to plead guilty.[379]
5.117
The lack of any contact with their legal advisors until
just before court commenced was confirmed by a number of remote Aboriginal
communities that responded to Committee correspondence about their
circumstances.[380]
Civil legal aid assistance
5.118
The Katherine Regional Aboriginal Legal Aid Service
advised that civil matters such as family law work, debt recovery, credit,
consumer, and tort related law matters are sidelined by criminal law matters.[381] Other
Indigenous legal service providers made similar comments.[382]
5.119
The North
Australian Aboriginal Legal Aid Service argued that a particular need is consumer
legal assistance in remote communities in relation to such matters as being forced to pay high prices for basic
food items, unfair dismissals, 'used car rip offs' and discrimination.[383]
5.120
The Top End Women's Legal Service argued that:
The access to justice in
remote areas is so inadequate that remote indigenous people cannot be said to
have full civil rights. Their civil rights are severely reduced because
they do not get adequate information let alone advice or representation about a
range of civil law matters, for example welfare rights, housing, discrimination
law, consumer rights, credit and debt, employment law, motor accidents
compensation, crimes compensation, negligence, family law and so on.
Furthermore remote indigenous people have no effective access to
a range of civil authorities that could assist them to assert their civil
rights [384]
5.121 Mr John Boersig from COALS stressed the importance of developing and promoting a range
of services that can be cross-referred to assist Indigenous people with their
legal needs:
There are civil and
family law servicesno doubt you have heard about that at lengthin which
domestic violence issues are crucial, as well as all the issues associated with
that, such as victims compensation, mediation, child care and protection.[385]
5.122 As an example Mr Boersig referred to the office where he works in Newcastle:
There are three
different service providers operating out of the same premises. The key service
provider is the University of Newcastle
Legal Centre. Attached to that are the civil lawyers with the Legal Aid Commission,
and also attached is one of the officers of the Many Rivers Aboriginal Legal
Service. Each of those services has a particular specialty. The Many Rivers
Aboriginal Legal Service focuses on criminal law, the university provides
family law and other related civil services, and the Legal Aid Commission
provides civil services.
Both in Newcastle and, indeed, in other areas, including
Lismore and Redfern, officers of Aboriginal legal services also involve students.
That has been very effective in adding value to the kinds of services that can
be provided.[386]
Committee view
5.123
The Committee is gravely concerned by the evidence it
received about the overwhelming deficiencies in the legal aid system as it
relates to Indigenous people in Australia,
particularly those living in remote areas. The Committee is particularly
concerned about the critical lack of access to justice for Indigenous women,
especially in relation to domestic violence matters. While the Committee recognises
that there are serious problems in the provision of legal aid and access to
justice for many Australians, it is apparent that Indigenous people are
disproportionately disadvantaged in seeking legal assistance and related
services.
5.124
The Committee considers that the Commonwealth
Government's decision to introduce competitive tendering in relation to the
provision of Indigenous legal services is ill-considered and inappropriate. The
decision is particularly difficult to comprehend given the recognition by
ATSILS and, indeed, the Commonwealth Government that ATSILS are the preferred
service providers of Indigenous people due to their ability to cater to
specific cultural needs. The Committee agrees with the submission by the NACLC
and its claim that '(u)nder the cloak of contestability policy dramatic new
policies are being proposed that will reduce the effectiveness of Legal Aid
provision to one of the most disadvantaged groups in Australia'.[387]
5.125
The Committee urges the Commonwealth Government to
recognise the importance of ATSILS and acknowledge that there is a clear need
for targeted, culturally sensitive and specialised Indigenous legal aid
services in order to enable Indigenous people to achieve access to justice.
Further, evidence suggests that the approaches taken by ATSILS in providing
services most effectively promote the rights of Indigenous people to
empowerment, identity and culture. The Committee considers that the 'Exposure
Draft of a Request for Tender for the Purchase of Legal Services for Indigenous
Australians' should be immediately withdrawn and the Commonwealth Government's
policy in this area reconsidered as a matter of priority.
5.126 The
Committee is particularly concerned by the Government's decision announced
during the last stages of this inquiry that it will abolish ATSIC and
"mainstream" funding for Indigenous services.[388] The
Committee notes that the Government intends to transfer the responsibility for
funding Aboriginal legal services and Family Violence Prevention Services to
the Attorney-General's Department.[389]
5.127 The
Committee urges the Government to ensure that Departmental officers
administering these programs recognise that ATSILS are usually the most
appropriate providers of legal services to Indigenous people, and acknowledge
that there is a clear continuing need for self-determination and for targeted,
culturally sensitive and specialised Indigenous legal aid services. Moreover,
the Government must ensure that ATSILS are recognised for their role as the main provider of
legal services to Indigenous people and that the integrity, capacity, strength,
effectiveness and value of ATSILS are maintained.
Recommendation 27
5.128
The Committee recommends that the Commonwealth
Government should urgently increase the level of funding to Indigenous legal
services in order to promote access to justice for Indigenous people. In doing
so, the Government must factor issues of language, culture, literacy,
remoteness and incarceration rates into the cost of service delivery.
Recommendation 28
5.129
The Committee recommends that the Commonwealth
Government's 'Exposure Draft of a Request for Tender for the Purchase of Legal
Services for Indigenous Australians' should be withdrawn and its underlying
policy reconsidered.
5.130
Evidence presented to the Committee about the
circumstances and needs of Indigenous women is particularly troubling. Chronic
disadvantage in relation to access to legal services, awareness and legal
rights, and a severe shortage of culturally appropriate domestic violence
support services are some of the problems Indigenous women face. The Committee
is also deeply concerned by the extremely high levels of violence within
Indigenous communities which impact largely on women, and by evidence indicating
that Indigenous women face significant impediments from within their own
communities in attempting to exercise their rights and seek access to justice.
5.131
The Committee supports the calls by ATSIC and the
NNIWLS for a comprehensive analysis of the needs of Indigenous women in the
legal system. Pending the outcome of that review, however, it is clear that
urgent steps must be taken to increase the assistance available to them.
Appropriate measures include the expansion of Family Violence Prevention Services
which appear to be gaining increased acceptance in Indigenous communities; and
funding for specialist Indigenous women's legal services and for ATSILS
generally.
5.132
The
Committee notes that in the recent Budget, the Government announced that it
would be 'expanding' the Family Violence Prevention Legal Services by providing
$22.7 million over four years.[390] The
Committee notes that this represents a small expansion only taken on an annual
basis, given the current $4.8 million provided in 2003/04, but welcomes the
decision to continue funding of this important program. The Committee notes
also that the Government has announced that it will support state/territory and
local projects that address Indigenous family violence by providing a further
$37.3 million over four years,[391] and
welcomes that decision. However, more needs to be done.
Recommendation 29
5.133
The Committee recommends that the Commonwealth
Government commission a comprehensive national study to determine accurately
the legal needs of Indigenous women.
Recommendation 30
5.134
The Committee recommends that the Commonwealth
Government and state/territory governments address the needs of Indigenous
women as a matter of urgency by improving, developing and promoting appropriate
legal and community services, community education programs, domestic violence support
networks and funding models to ensure that the experience of Indigenous women within
the justice system is fair and equitable. In implementing this recommendation, the
Commonwealth Government, state/territory governments, legal aid commissions and
other key stakeholders should consult widely with Indigenous women, so that the
impetus for change comes from Indigenous women themselves.
Recommendation 31
5.135
The Committee recommends that the Government allocate
sufficient funding to Indigenous legal services and Indigenous Family Violence
Prevention Legal Services to enable adequate provision of effective legal
services for Indigenous women in family law and family violence matters,
including funding for additional
culturally sensitive services in areas of highest need.
5.136
The Committee is also concerned about the problems
faced by Indigenous people in remote communities. The problems arising from
circuit courts in remote communities, particularly the frequently reported lack
of access to legal advice until the day of the person's hearing, have been well
documented elsewhere. The Committee has also heard evidence of the problems of
reliance on telephone services, particularly given the lack of privacy in
community facilities where calls must often be taken, and the desirability of
having face-to-face interviews with legal advisors and support workers.
Recommendation 32
5.137
The Committee recommends that the Commonwealth
Government and state/territory governments address the serious problem of lack
of access to justice for Indigenous people in remote areas by providing resources
to support the expansion and development of available services.
5.138
Finally, the Committee considers, as it has concluded
elsewhere in this report, that the provision of adequate legal services to
Indigenous people can only be achieved if proper funding is provided on the
basis of assessed need. Consequently, an analysis of the needs of Indigenous
people should be undertaken on a national basis.
Recommendation 33
5.139
The Committee recommends that the Commonwealth Government
conduct a legal needs analysis for Indigenous people throughout Australia
through a national strategy involving all Aboriginal and Torres Strait Islander
legal services, legal aid commissions, community legal centres and other key
stakeholders.