Chapter 8
The ability of Indigenous people to access justice
8.1
This chapter discusses evidence presented to the inquiry regarding term
of reference (f), the ability of Indigenous peoples to access justice. In
general, submitters and witnesses argued that Indigenous legal services do not
appropriately and adequately cater to the needs of Indigenous people,
particularly women. The topics covered in this chapter include:
-
an appropriate legal assistance service;
-
Indigenous legal services;
-
the Legal Aid for Indigenous Australians program funding;
-
the adequacy of funding;
-
the Family Violence Prevention Legal Services program; and
-
the Indigenous Law and Justice Framework.
An appropriate legal assistance service
8.2
Indigenous peoples remain the most socially and economically
disadvantaged members of the Australian community. Submissions and testimony
highlighted broad and numerous legal needs which, they argued, could only be
addressed by access to appropriate legal advice and representation, that is, a high
quality and culturally sensitive legal assistance service.[1]
8.3
The National Pro Bono Resource Centre (NPBRC) told the committee:
Research indicates that Indigenous Australians rely on [Indigenous
legal offices] and are relatively less likely to seek help from mainstream
providers due to a distrust of the legal system, language barriers and a
perceived lack of cultural awareness among mainstream legal service providers.[2]
8.4
In 2009, it is widely acknowledged that a specialist Indigenous legal
service is the preferred and most culturally appropriate means of providing
legal assistance to Indigenous people.[3]
Indigenous legal services
8.5
At the federal level, the Attorney‑General's Department (department)
is responsible for delivering the specialist Indigenous legal service. This presently
comprises four Indigenous law and justice programs:
-
a national program of legal assistance for Indigenous people, the
Legal Aid for Indigenous Australians (LEGA) program;
-
the Law and Justice Advocacy Development Program;
-
the Prevention, Diversion and Rehabilitation and Restorative
Justice Program; and
-
the Family Violence Prevention Legal Services (FVPLS) program,
the
first and last of which are discussed in this report.
8.6
Since July 2005, legal assistance services under the LEGA program have
been contracted via a competitive tendering process. There is a network of
eight service providers throughout the states/territories, the Aboriginal
Torres Strait Islanders Legal Services (ATSILS), delivering legal assistance
services to over 84 permanent sites, court circuits and outreach locations in
urban, and rural, regional and remote (RRR), areas of Australia.
8.7
The department has contracted until 30 June 2011 the following ATSILS to
deliver legal assistance services to Indigenous people in their state/zones:
-
New South Wales (including the Australian Capital Territory and
Jervis Bay Territory) – Aboriginal Legal Service (NSW/ACT) Limited
-
Victoria – Victorian Aboriginal Legal Service Co-operative
Limited
-
Queensland North and South Zone – Aboriginal and Torres Strait
Islander Legal Services (Qld) Limited
-
Western Australia – Aboriginal Legal Service of Western Australia
Incorporated
-
South Australia – Aboriginal Legal Rights Movement Incorporated
-
Tasmania –Tasmanian Aboriginal Centre Incorporated
-
Northern Territory North Zone – North Australian Aboriginal
Justice Agency Limited
-
Northern Territory South Zone – Central Australian Aboriginal
Legal Aid Service Incorporated[4]
8.8
In 2003‑04, the committee received much evidence concerning the LEGA
program competitive tendering process.[5]
Those concerns were not repeated to this inquiry. Instead, submissions and
evidence focussed upon other issues, such as: funding for the LEGA program; and
funding impacts on ATSILS' service levels.
The Legal Aid for Indigenous Australians program funding
8.9
Figure 8.1 below shows Australian Government funding for the LEGA
program from 2005 to 2010. In general, the funding increased over the past five
years, except for an approximate 6 per cent decrease in funding for the current
financial year. The Budget 2009-10 foreshadows decreased funding for the next
three financial years.[6]
Figure 8.1 – Legal Aid for Indigenous Australians program funding: 2005‑2010
Source: Attorney‑General's
Department, Portfolio Budget Statements, 2005‑10
8.10
In addition to core funding for the LEGA program, the Australian
Government made a number of one‑off funding injections for Indigenous
legal services in 2007‑09. In 2007‑08, for example, a one‑off
injection of $13.215 million was made to address the increasing need of
Indigenous peoples for criminal, civil and family law legal assistance services.[7]
The adequacy of funding
8.11
As discussed in Chapters 3 and 7, the ability of legal aid commissions
(LACs) and community legal centres (CLCs) to effectively provide core services is
constrained by funding considerations. Indigenous legal service providers fared
no better, with submissions and testimony reiterating the concerns of their
mainstream counterparts.
Real funding
8.12
In essence, evidence to the inquiry stated that Australian Government
funding under the LEGA program has declined since the introduction of the
Commonwealth Legal Aid Priorities and Guidelines. According to submitters and
witnesses, this has, in turn, adversely affected the ability of Indigenous
people to access justice, with ATSILS experiencing significant funding
difficulties.
8.13
According to the Public Interest Advocacy Centre (PIAC),
ATSILS struggle to adequately meet the demands for their
service as a consequence of inadequate funding arrangements.'[8]
8.14
The Aboriginal Legal Service of Western Australia concurred, telling the
committee:
ATSILS made submissions to [the 2003‑04 inquiry] and
the main issue being lack of funding has not changed. In our view the funding
provided is now even more inadequate due to the increase in the demand for
Indigenous legal services. The funding has not increased to meet ALSWA's
additional operational expenses of running existing services or to meet the
increase in demand for services. The need for additional funding for ATSILS is
critical and should be one of the highest priorities for the Australian
Government.[9]
8.15
In South Australia, the Aboriginal Legal Rights Movement Inc. advised its
frustration with the 'gross under‑funding' of Indigenous legal services:
Since 1996 ALRM’s legal aid funding for advice and
representation has been static. Here it is in 2009 and I continue to operate on
1996 dollars. This is in excess of a 40% reduction in funding in real terms for
that period, and when compared to mainstream legal aid in SA which has
increased in actual dollars by over 120%.[10]
8.16
In the Northern Territory, the North Australian Aboriginal Justice
Agency (NAAJA) receives no funding from the territory government on the basis
that Indigenous people are a Commonwealth responsibility. No allowance is made
for criminal law matters arising under territory law, despite such matters
constituting 95 per cent of NAAJA's criminal work:
The Northern Territory government would see their providing
us with any funding as the thin edge of the wedge, so to speak – that the
Commonwealth would reduce their [sic] funding accordingly.[11]
8.17
The department acknowledged that this situation does occur, but due to
inter‑related responsibilities, the Australian Government is exploring a
more collaborative approach to funding (and other) issues:
States and territories make very little contribution, if any,
to [Indigenous legal aid]. A large proportion of the work provided by
Indigenous legal aid services is in the criminal law area, particularly state
and territory crime. Issues such as more court circuits or changes in criminal
law policies or procedures have a direct impact on the supply and the demand
for those legal services as well. That is something we are exploring with the
states and territories as well, in seeking further funding for those services.[12]
8.18
NAAJA's submission provided a useful examination of its contractual
funding arrangements with the Australian Government. The contract contains the
following increases in budget allocations over and above the base 2007‑08
allocation:
8.19
NAAJA told the committee that these allocations do not incorporate basic
CPI increases (3 per cent), and consequently, its 2008‑11 budget has the
following shortfalls in real funding: $239 517 in 2008‑09; $369 390 in 2009‑10;
and $391 735 in 2010-11:
Despite some funding increases which are welcome...our core
funding which gives us the basics to get out there and, certainly on the
criminal side, deal with an ever increasing raft of charges against our
clients, is not increasing and it is getting harder and harder to do the work.[14]
8.20
In Western Australia, the Australian Government exclusively funds the
Aboriginal Legal Service of WA however at the Perth public hearing, the
committee heard that that funding has limited capacity to provide access to
justice:
We do not receive one cent from the state government. That
means that our capacity to provide legal assistance to the Aboriginal
community, especially in regional and remote areas, in non-criminal areas, in
areas such as Centrelink, employment law, discrimination, guardianship, probate
and family law, is very limited indeed simply because we are not provided with
enough money to be able to provide those services.[15]
8.21
The Aboriginal Legal Service of WA, like most ATSILS, necessarily
prioritises criminal law matters, which comprise approximately 80 to 90 per
cent of its work load. It indicated that its workload is just manageable due to:
informal agreements between legal assistance service providers in RRR areas
regarding who will handle which circuits; and the use of Indigenous court
officers.
8.22
Indigenous court officers appear in court as advocates on behalf of
Indigenous clients. According to the Aboriginal Legal Service of Western
Australia, this service provides accessible legal representation to Indigenous
people, and is a strategy which could be more highly utilised to ensure greater
access to justice:
We love our court officers; they are a tremendous addition to
our service. And we are the only state or territory which has court officers
who can actually do representation. But, as an Aboriginal man, I kind of feel,
‘Are our people really getting a good deal here when we have got
paraprofessionals doing some very serious matters?’ There could be a
rationalisation.[16]
8.23
In its submission, the Aboriginal Legal Service (NSW/ACT) also
questioned whether Indigenous people are being provided with a second‑rate
service due to inadequate funding of the ATSILS. In its view, the under‑funding
has an ulterior agenda – to force Indigenous people to use mainstream legal
assistance services:
The ALS (NSW/ACT) is perplexed by repeated assurances that it
is not the Attorney‑General Department’s intention either to impair the
ALS’s continuing capability to provide a high quality and culturally sensitive
legal service or to force Aboriginal people into relying on mainstream‑less
culturally appropriate legal services.
Yet each will be the result of what has been, effectively, a
reduction in funding levels, together with a consequent loss of confidence by
Aboriginal people in the commitment of the Australian government to improve
access to justice for Aboriginal communities.[17]
8.24
The preponderance of evidence to the committee indicates that, for
whatever reason, ATSILS across the country are not fully funded. The committee is
concerned that, as a result, Indigenous peoples' access to justice might be
impaired.
8.25
The committee notes that, to date, the Australian Government solely
funds ATSILS, and that funding under the LEGA program is currently declining.
The committee is concerned with the decline in funding, particularly in
view of the increased Indigenous population, the average age of the Indigenous
population, and the increasing rates of incarceration for Indigenous people.
8.26
Furthermore, given that Indigenous peoples' legal needs arise under federal,
state and territory law, the committee considers that all governments
should be financially contributing to the provision of Indigenous legal
services.
Recommendation 26
8.27
The committee recommends that the federal, state and territory
governments inquire into and report on joint funding for the Legal Aid for
Indigenous Australians program and related services with a view to more
equitably apportioning financial responsibility for Indigenous legal services
funding.
Comparisons with mainstream funding
8.28
As discussed in Chapter 7, submissions and testimony argued that one‑off
funding injections are no substitute for the provision of adequate core funding,
and evidence under term of reference (g) echoed these arguments in relation to
ATSILS.[18]
However, submitters and witnesses expressed more concern with the apparent
disparity between mainstream and ATSILS funding.
8.29
Table 8.1 below compares 2006‑07 Australian Government funding
levels for LACs, CLCs, ATSILS and FVPLS. In general, most funding was provided
under the Legal Aid Program (LAP) (60.42 per cent), followed by the LEGA program
(19.66 per cent), then the Community Legal Services Program (CLSP) (9.04 per
cent), and finally, the FVPLS program (4.61 per cent).
Table 8.1 – Comparative funding levels (in '000 dollars rounded) across
comparable Attorney-General's Department programs 2006-07
|
State |
CLSP |
% of total funding |
LAP |
% of total funding |
LEGA |
% of total funding |
FVPLS |
% of total funding |
Total funding |
|
NSW |
5 320 |
7.59% |
45 802 |
65.41% |
12 664 |
18.08% |
2 201 |
3.14% |
70 026 |
|
VIC |
4 713 |
10.26% |
30 616 |
66.68% |
2 809 |
6.12% |
873 |
1.90% |
45 916 |
|
QLD |
3 362 |
6.40% |
32 071 |
61.06% |
12 325 |
23.47% |
2 169 |
4.13% |
52 522 |
|
WA |
3 302 |
12% |
13 862 |
46.58% |
8 811 |
29.61% |
2 755 |
9.26% |
29 758 |
|
SA |
2 910 |
13.43% |
13 360 |
61.64% |
3 627 |
16.74% |
963 |
4.44% |
21 673 |
|
TAS |
1 034 |
13.91% |
4 999 |
67.26% |
1 399 |
18.82% |
Nil |
Nil |
7 432 |
|
ACT |
519 |
11.78% |
3 887 |
88.24% |
Nil |
Nil |
Nil |
Nil |
4 405 |
|
NT |
987 |
7.43% |
3 428 |
25.81% |
6 536 |
49.22% |
2 330 |
17.55% |
13 280 |
|
Total |
22 149 |
9.04% |
148 025 |
60.42% |
48 181 |
19.66% |
11 291 |
4.61% |
245 012 |
Source: Attorney‑General's
Department, Review of the Commonwealth Community Legal Services Program, March 2008, p. 44.
8.30
Figure 8.2 below depicts how Australian Government funding levels for
LACs, CLCs, ATSILS and FVPLS have changed from 2005 to 2010.
Figure 8.2 – Comparative funding levels for
comparable Attorney‑General's Department programs: 2005-2010
Source: Attorney‑General's
Department, Portfolio Budget Statements, 2005‑10
8.31
Figure 8.2 shows that: LAP funding increased by approximately 50.23 per
cent over the past five years; CLSP funding increased by approximately 9.81 per
cent over the past five years; and LEGA program funding for the same period
also increased by approximately 9.81 per cent.
8.32
The Law Council of Australia (Law Council) told the committee that
ATSILS are the most under‑funded sector of all legal assistance service
providers, with a 40 per cent decrease in real funding since
1997. That figure does not take into account unmet and increased need. In
2003, the Australian Human Rights Commission (AHRC) understood the shortfall in
ATSILS funding to be approximately $25.6 million per year.[19]
8.33
In addition, submissions highlighted additional factors which complicate
the delivery of legal services to Indigenous peoples, and must be taken into
consideration in funding proposals and allocations. NAAJA, for example,
submitted that:
The provision of legal advice, education and advocacy “to
communities organised according to traditional customs can be complex and far
more time consuming than comparable work in non‑Indigenous communities”. In
our experience, this is eminently the case. Many NAAJA clients live in
communities with strong adherence to traditional law and customs. For the
majority of our clients, the operation of the mainstream legal system is totally
foreign and fundamental legal concepts such as “guilty” and “not guilty” are
poorly understood.[20]
8.34
In its submission, NAAJA provided a useful, practical comparison of a
few of its budgeted expenses for 2007‑08, as compared with those of the
Northern Territory LAC:
-
brief out budgets: $85 000 for criminal matters and $30 000 for
civil/family matters (cf. $1 593 043 for the Northern Territory LAC, including
external disbursements); and
-
client expenses: $128 421 (cf. $646 520 for the Northern
Territory LAC, including in‑house disbursements).[21]
8.35
Professor Chris Cunneen and Melanie Schwartz also provided detailed
budget comparisons:
The authors were provided with data from the North Australian
Aboriginal Justice Agency (NAAJA) comparing funding between that organisation
and the Northern Territory Legal Aid Commission (NTLAC). A comparison between
figures for the NTLAC 2005-6 and NAAJA 2006-7 show that the NTLAC budget is
$7,665,489 compared to the NAAJA budget of $4,822,612. Thus NTLAC has a 59%
greater budget than NAAJA.[22]
8.36
The AHRC noted that this was:
...despite NAAJA undertaking three times as many criminal
matters, as well as a greater total number of criminal, civil and family law
matters combined.[23]
8.37
Broadly speaking, the Aboriginal Legal Service of Western Australia gave
evidence that the disparity between ATSILS' and LACs' resources is an 'obvious
and shameful disparity that must be urgently addressed by the Commonwealth if
it is genuinely committed to ensuring access to legal services to Indigenous
people.'[24]
8.38
The Law Council called for a funding injection to enable ATSILS to
provide a high quality and professional level of legal representation for
Indigenous peoples:
The justice system will continue to fail Indigenous peoples
unless the most likely and effective means by which Indigenous Australians are
able to receive legal services are adequately funded.[25]
8.39
In the 2003‑04 inquiry, the committee expressed grave concern at
the evidence it received regarding overwhelming deficiencies in Indigenous
legal services, particularly in RRR areas. The committee made Recommendation 27,
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.[26]
8.40
In 2006, the Australian Government responded that its new funding
allocation model would allocate funds on the basis of 'relative need'. The
response also cited increased funding for the FVPLS program as evidence of the
government's commitment to improving Indigenous peoples' access to justice.[27]
8.41
Evidence to the committee clearly states that Indigenous legal services
remain significantly under‑funded, a view which the committee accepts,
and with respect, the government's 2006 response entirely overlooks the
substance of the committee's earlier recommendation.
8.42
The committee continues to agree that Indigenous legal services are not
adequately funded, impacting on Indigenous people's access to justice. The
committee therefore reiterates with emphasis Recommendation 27 of its
2004 Report (now also re‑labelled Recommendation 27).
Recommendation 27
8.43
The committee recommends that the Australian Government increase the
level of funding for Indigenous legal services with a view to sufficiently
resourcing this sector of the legal aid system to meet the needs of Indigenous
peoples, including appropriate loadings for extra service delivery costs.
Family and civil law matters
8.44
As discussed in Chapters 3 and 7, family and civil law matters are two
areas of law which contributors to the inquiry argued are not sufficiently
covered by the LAP or the CLSP. Submissions and testimony in relation to ATSILS
echoed these concerns.
8.45
National Legal Aid (NLA), for example, submitted that Indigenous legal
services have never been sufficiently funded to establish a family or civil law
practice, meaning that these needs must either be met by mainstream legal
assistance services, are otherwise neglected; or result in self‑representation
in the court system.
8.46
NLA told the committee that none of these options is satisfactory due
to:
-
inadequate funding of mainstream legal assistance providers;
-
the appropriateness of the Indigenous legal services; and
-
conflicts of interest, particularly in family law and family
violence matters, and also due to the paucity of legal practitioners in RRR
areas.[28]
8.47
NLA contended that:
Given the chronic disadvantage experienced by Aboriginal and
Torres Strait Islander peoples, and the responsibility of the Commonwealth for
Indigenous people as “Commonwealth persons”, the Commonwealth Government should
provide sufficient funding to Indigenous legal services so that they can
provide effective and appropriate services to Aboriginal and Torres Strait
Islander peoples and their communities, not only in criminal matters, but in
family and civil law matters as well.[29]
8.48
An additional concern, raised by the Victorian Aboriginal Legal Service
Cooperative Ltd, is that the lack of civil law practices in ATSILS results in
an inability to identify and refer Indigenous peoples to pro bono legal assistance
service providers.[30]
8.49
In 2008, the NPBRC released The Aboriginal Legal Service Pro Bono
Guide, the aim of which was to 'provide information to...the Aboriginal Legal
Service...in order to facilitate the delivery of effective and sustainable pro
bono assistance to the ALS'.[31]
Two large pro bono law firms indicated to the committee however that the
publication has had minimal, if any, effect.[32]
8.50
Elsewhere, this report refers to the difficulties experienced by ATSILS
in the delivery of legal services to Indigenous peoples, particularly in RRR
areas. This chapter briefly discusses language barriers, geographic
considerations, and recruitment and retention issues.
Language barriers
8.51
In 2003‑04, the committee heard that a common barrier to accessing
legal assistance is language as many Indigenous peoples speak English as a
second, third or fourth language, if at all. Evidence to the inquiry maintained
the argument, with the Australian Lawyers Alliance telling the committee:
There are over 200 Aboriginal languages still spoken in
Australia; many Aboriginal people use their native language every day and may
speak and understand English only at a limited level. Some attempts have been
made to address these issues, including the joint Commonwealth and Northern
Territory Funding of the Aboriginal Interpreters Service (AIS), which operates
to assist in interpreting in up to 105 Aboriginal languages.[33]
8.52
The AHRC added that, in addition to English not being the first language
in some Indigenous communities, the nuances of Aboriginal English can also lead
to misunderstandings between clients and their lawyers (and the justice
system).[34]
8.53
Nationwide, there is a variety of language services provided by the
states/territories. For example, the Northern Territory has (limited)
interpreter services, whereas Western Australia has no state‑wide,
publicly‑funded, accredited and resourced interpreter service for
Indigenous speaking people. The Aboriginal Legal Service of WA considered the
lack of such a service 'a miscarriage of justice':
Our people are going to court and they should not be going to
court, because they cannot understand half the things that are going on around
them, let alone read back the statement that they are supposed to have made to
the police. It is just unbelievable.[35]
8.54
The United Nations Human Rights Committee considers access to
interpreter services as an effective measure to ensuring access to justice, a
need recognised and endorsed by the High Court of Australia over ten years ago.[36]
8.55
In general, evidence argued that access to interpreters, and the right
to understand both charges and proceedings, is a fundamental right, a right neither
adequately recognised,[37]
nor for which practical measures are properly resourced.
8.56
The NPBRC, for example, submitted that no courts have available, properly
accredited interpreting services, and the Women's Legal Service (SA) Inc. told
the committee that, 'more often than not matters proceed through court in the
absence of interpreters contrary to all notions of justice.'[38]
8.57
At the Melbourne public hearing, Her Honour Chief Justice Diana Bryant
told the committee that the Family Court of Australia (FCA), at least, provides
free interpretation services to anyone requesting such assistance. However, Her
Honour acknowledged that there are difficulties with that service:
The best interpreter services for the parties are not always
available. I am hearing that sometimes the person who comes will be good and other
times they will be less than optimal.[39]
8.58
In addition, the committee heard that the high cost of interpreters and
translators prevents their engagement by some, if not all, resource poor legal
assistance service providers.[40]
8.59
The committee accepts that language (and cultural) barriers inhibit
Indigenous peoples' access to justice, and that the lack of comprehensive
interpreter services causes disaffection amongst Indigenous peoples.
8.60
The committee notes that the root problem appears to go beyond a
financial 'solution', and until non‑financial contributory factors are
identified and proposals for reform are developed, any financial solution
proposed by the committee will have only limited effect. Nonetheless, the
committee promotes increasing access to justice, and if this goal can be
partially attained with enhanced interpreter services, then the committee
recommends accordingly.
Recommendation 28
8.61
The committee recommends that:
-
the federal, state and territory governments provide additional
funding to court‑based interpreter services in each state and territory
with a view to expanding that service in high need areas; and
-
the Australian Government commence a process of consultation to
seek solutions to the translating difficulties associated with some Indigenous
languages, with a view to reducing language barriers to access to justice.
Geographic considerations
8.62
Evidence to the inquiry stated that geographic considerations affect legal
practitioners' ability to provide legal services and access to justice. This
was markedly so for Indigenous peoples living in RRR areas, with submitters and
witnesses referring to how limited funding impacts practitioners' ability to
deliver access to justice.
8.63
NAAJA, for example, told the committee:
Limited funding...means that wherever possible, NAAJA staff
drive to attend bush courts while court staff and prosecution services
generally fly. This requires NAAJA staff to travel long distances, generally on
poor quality roads, often after court has finished for the afternoon. For some
bush courts, (for example Kalkarindji and Lajamanu) where there is no
accommodation available in the community, NAAJA staff travel 1.5 – 2.5 hours
each way every day to attend court.[41]
8.64
Leaving the direct impact on legal practitioners aside, the need to
travel great distances affects the amount of time practitioners are able to
spend taking instructions from their clients. NAAJA described this situation as
follows:
Our solicitors have only one day prior to court in the
community to prepare, in turn meaning that many clients cannot be seen
beforehand. With the long court lists in many communities, this leads to
limited time being available for each client.
These problems extend to limited preparation time for complex
hearings, as the standard practice is to collect the brief material upon the
solicitor’s arrival to the bush court even where the client is in custody and
will only be flown to the community on the day of the hearing. This often makes
it impossible to get effective instructions, in circumstances where there will
be pressure on the solicitor to proceed quickly because of the expense incurred
in flying the client in custody to the community and the fact that other
witnesses may have been called.[42]
8.65
Legal assistance service providers necessarily incur additional costs in
delivering services to RRR areas, and these expenses cannot always be predicted
when a provider is preparing budgets and lodging funding submission.
8.66
The committee heard that if legal service providers did not bear the
brunt of such expenses, then the expense would either fall to clients or
discourage clients from obtaining legal assistance. Already, Indigenous peoples
need to travel great distances and at great expense to interact with the
justice system, including coronial inquests:
The large distances and costs also mean that many clients are
reluctant to adjourn matters or set them for hearing as this means they will
have to make the trip again. This results in clients pleading guilty at the
first instance and not having the benefit of alternative resolutions being
negotiated with police....The capacity for the family of a deceased person’s
family to be able to participate, and be represented, in the Inquest into the
death is a fundamental right which goes to the very core of access to justice.[43]
Recruitment and retention
8.67
In general, ATSILS gave evidence that funding under the LEGA program is
not sufficient to attract legal practitioners to ATSILS employment,
particularly in RRR areas. Evidence acknowledged that remuneration issues are
exacerbated by comparative work levels and the complex needs of Indigenous
peoples.
8.68
The AHRC, for example, told the committee that:
The disparities between Legal Aid and ATSILS are exacerbated
by the complex needs of Indigenous clients in accessing legal services such as
relating to language, cross-cultural issues and social exclusion as well as
through lower levels of educational attainment and higher levels of hearing
loss, disability, mental health issues and so on. Given the sheer burden of
numbers, many Aboriginal and Torres Strait Islander Legal Services are under
considerable strain to meet the needs of the community.[44]
8.69
NAAJA provided the following comparison of its workload with that of the
Northern Territory LAC:
Over the 2007/2008 period of comparison, each NAAJA solicitor
attended to approximately 144 new casework matters in addition to casework
matters that continued from the previous financial years. In total, in
2007/2008, NAAJA solicitors handled 3,529 criminal matters and 515 family/civil
matters. This does not include the additional 1,523 duty files which were also
handled by NAAJA solicitors.
By comparison, NTLAC staff only handled 1,367 criminal
matters and 307 family/civil matters over the same period. This means that each
NTLAC solicitor attended to approximately 76 matters per year (we presume this
is, likewise, in addition to matters that continued from previous financial
years).
Such disparity has “severe ramifications” for NAAJA’s
capacity and, therefore, the adequacy of legal services available to Indigenous
clients.[45]
8.70
In addition to the demanding workload, submitters and witnesses referred
to ATSILS solicitors' salary levels as a great disincentive for working for
Indigenous legal services. Again, NAAJA told the committee:
In 2007/2008, NAAJA employed 6 additional staff than NTLAC
yet NTLAC paid an additional $897,000 on staffing salaries than NAAJA. This
means that the average salary for NTLAC is $73,489 as compared with $52,251 for
NAAJA.
As with other ATSILS, NAAJA unfortunately suffers from high
staff turn over, partly as a result of lower salaries and higher workloads than
other legal aid organisations (such as NTLAC). In 2006/2007, NAAJA’s staff turn
over was 21% and in 2007/2008, this has increased to 26%. Currently, the
average length of employment for a solicitor is 12 months.
This high staff turn over affects productivity across the
organisation and ultimately, the quality of outcomes for our clients.[46]
8.71
The NPBRC likewise submitted:
One of the biggest issues facing ILOs nationally relates to
the salaries of solicitors. As result of inadequate funding, salaries offered
to solicitors at ILOs are so far below those offered by legal aid and the
private profession that it is very difficult for them to recruit and retain
experienced staff, particularly in regional, rural and remote areas.[47]
8.72
The Law Council demonstrated the point by contrasting the salary of a
Level 1/2 solicitor at the Aboriginal Legal Rights Movement Inc. ($41 000‑$47
000) with the salary paid to an equivalent solicitor at a LAC ($50 000-$65
000).[48]
8.73
The Australian Legal Assistance Forum has similarly determined that, on
average, ATSILS solicitors receive 20-25 per cent less than LAC solicitors for
conducting the same type of work, and notes that, in some instances, the
difference is as high as 48.22 per cent.[49]
8.74
NLA suggesting to the committee that recruitment and retention
difficulties could be partially addressed with: funding increases to enable pay
parity; and portability of all forms of leave entitlements across legal assistance
service providers:
Pay parity and portability of leave entitlements are features
of the Western Australia "Country Lawyers Program" which was
established to address recruitment and retention issues in country Western
Australia. It is suggested that this program demonstrates the benefits of such
an approach having increased service delivery to people in regional and remote
areas of Western Australia.[50]
8.75
The committee agrees that ATSILS' recruitment and retention difficulties
must be addressed to provide Indigenous peoples with a consistent and high
quality legal service. Portability of entitlements is a simple and effective
way of immediately improving the terms and conditions under which ATSILS'
solicitors are currently employed, and the committee encourages state/territory
governments, in conjunction with concerned stakeholders, to explore ways of
implementing such measures.
8.76
The committee also considers it odd for publicly funded legal assistance
service providers to employ legal practitioners at substantially different
rates, particularly when the work is in many respects similar.
Recommendation 29
8.77
The committee recommends that the federal, state and territory
governments jointly, and in conjunction with affected stakeholders, review
current salary levels across legal aid commissions and Aboriginal and Torres
Strait Islander legal services, and propose salary level reforms for this sector
of the legal aid system with a view to eliminating wage disparity.
Recommendation 30
8.78
The committee recommends the introduction of portable leave entitlements
across legal aid service providers in Australia with a view to enhancing the
retention of staff in these sectors.
Impact of funding on service levels
8.79
During the inquiry, the Productivity Commission released its report Overcoming
Indigenous Disadvantage: Key Indicators 2009. This report showed that
Indigenous peoples continue to be over‑represented in the criminal
justice system, both as young people and as adults:
-
after adjusting for age difference, Indigenous people were 13
times as likely as non‑Indigenous people to be imprisoned in 2008;
-
the imprisonment rate increased by 46 per cent for Indigenous
women and by 27 per cent for Indigenous men between 2000 and 2008; and
-
Indigenous juveniles were 28 times as likely to be detained as
non‑Indigenous juveniles at 30 June 2007. The Indigenous juvenile detention
rate increased by 27 per cent between 2001 and 2007.[51]
Table 8.2 – Indigenous and non-Indigenous prisoners (comparative): 2000‑08
Source: Productivity
Commission, Overcoming Indigenous Disadvantage: Key Indicators 2009,
p. 289.
(Note: Further statistical
breakdowns are available at pp 288‑293 of the report.)
8.80
Findings similar to those of the Productivity Commission also appeared in evidence to the committee,[52]
and measures by which the over‑representation could be corrected are
discussed in Chapter 6.
8.81
In general, submissions and evidence under this term of reference
remarked that real funding decreases under the LEGA program have reduced both the
number and range of services that ATSILS can offer Indigenous peoples,
including in the priority area of criminal law.[53]
8.82
NAAJA, for example, attended to 7 500 matters in 2007‑08,
approximately 53 per cent of which involved criminal defence representation. NAAJA
told the committee that the Northern Territory Emergency Intervention subsequently
increased: the rate of charging; the number of matters going to court: and the
number of Indigenous peoples in need of legal assistance by approximately 25
per cent:
For example, at Galiwinku, which formerly did not have a
police station and now has one, the court list is starting to grow. It is not
growing with people charged with violent offending; it is growing with people
charged with traffic offences, relatively minor breaches of domestic violence
and offences involving police themselves. What really causes a lot of trouble
for our clients is what we would term over policing. There are so many police
per capita now in remote Territory areas that the charges just start to flow.[54]
8.83
In spite of this increase in demand, NAAJA testified that it remains
inadequately funded to cope with the criminal law needs of Indigenous clients.
Evidence noted that, in essence, this means Indigenous men, although the number
of Indigenous women charged with criminal offences is increasing.[55]
The Family Violence Prevention Legal Services program
8.84
In 1993, the Australian Law Reform Commission (ALRC) inquired into the
discriminatory effects of Commonwealth law on women. Its findings aimed to
ensure women's full equality before the law, and in relation to Indigenous
women, the ALRC found that:
Aboriginal and Torres Strait Islander Legal Services do not
currently benefit women and men equally. First, most services implement a
policy of not acting for either party in a matter between two Indigenous
clients. Second, most legal services give priority to defending criminal cases
over other matters. On the face these practices appear gender neutral but their
effect is to indirectly discriminate against Indigenous women. Like
most groups of women, Indigenous women often need legal assistance in relation
to matters of family violence and family law. For most Indigenous women such
disputes are with other indigenous people. The outcome of precluding women from
receiving assistance for such matters is that Indigenous women are
disadvantaged compared to Indigenous men and compared to other women.[56]
8.85
The ALRC recommended the establishment of Indigenous women's legal
services in areas where consultation with local Indigenous women indicated a
demand for such a service, and taking into account:
-
that the services, where possible, should be staffed and managed
by Indigenous women, and the type of legal service provided should be
determined by the women of the communities to be served;
-
that the services are to be targeted toward regions of greatest
need, having particular regard to remoteness and existing services in the
region; and
-
the existence of community networks which are demanding such a
service and which will use and support the service.[57]
8.86
Following publication of the Equality before the law: Justice for
Women report, the special needs of Indigenous women have been increasingly
recognised, consistent with Article 22(2) of the United Nations Declaration on
the Rights of Indigenous Peoples, which states:
2. States shall take measures, in conjunction with indigenous
peoples, to ensure that indigenous women and children enjoy the full protection
and guarantees against all forms of violence and discrimination.[58]
8.87
Despite this recognition, the committee has previously heard, and
continues to hear, that Indigenous women (and children) remain chronically
disadvantaged in terms of their access to justice. Evidence to the inquiry
particularly focussed on situations of family/domestic violence and sexual
assault.[59]
Funding for the program
8.88
At present, the Australian Government funds the FVPLS program, which assists
Indigenous people who are either victims of family violence, including sexual
abuse, or who are at immediate risk of family violence.[60]
8.89
Figure 8.1 above shows that, in 2008‑09, the Australian Government
allocated $18.776 million in funding to the FVPLS program, with steady
increases over the next four years: $19.389 million in 2009‑10; $19.577
million in 2010‑11; $19.949 million in 2011‑12; and $20.308 million
in 2012‑13, a total of $79.223 million over the next four years.[61]
8.90
In addition to FVPLS program funding, the department administers
Indigenous women specific funding through mainstream legal services, for
example, nationwide Indigenous Women's Projects (IWP) through the CLSP. The IWPs
assist Indigenous women across a wide range of legal issues, including: family
law; tenancy; domestic and sexual violence; and consumer rights law.[62]
8.91
In spite of consistent funding, the committee heard that the FVPLS
program is not adequately funded, with funding arrangements in a never‑ending
state of turmoil:
Funding arrangements for family violence prevention and legal
services are entirely inadequate. FVPLS Victoria is still negotiating today, 15
July, its 2009‑10 budget with the Commonwealth Attorney‑General’s
Department. All family violence prevention and legal services are on a 12‑month
funding cycle, which does not allow organisations to engage in long term planning.
It creates uncertainty for the organisation and affects stability. There is widespread
acknowledgement that the complex and intractable nature of Indigenous disadvantage
requires long‑term funding commitments for Indigenous programs. There can
be no doubt that programs dealing with family violence and disadvantage for
Indigenous women require this level of commitment.[63]
8.92
Given the totality of evidence to the inquiry, the committee accepts
that the FVPLS program experiences funding difficulties, and that as a result,
Indigenous women are not necessarily being provided with legal services that
meet their needs in this area. In view of Recommendation 20, the committee
agrees in principle with Recommendation 31 of its 2004 Report but does not need
to reiterate that recommendation.
Auspice arrangements
8.93
Evidence regarding the FVPLS program tended to focus on its auspice
arrangements, rather than its funding levels. Submitters and witnesses told the
committee that auspice arrangements in Western Australia are seriously flawed,
with the Aboriginal Legal Service of WA auspicing FVPLS units.
8.94
As previously indicated, ATSILS prioritise criminal law matters. In
cases of family/domestic violence, this usually means the perpetrators of such
violence, that is, Indigenous men. The Aboriginal Family Violence Prevention
Legal Service Victoria submitted that:
The Aboriginal legal services are not the appropriate
services to support victim survivors, due to actual and perceived conflicts of
interest and their significant work with offenders.[64]
8.95
In its submission, the Aboriginal Family Violence Prevention Legal
Service Victoria emphasised the independence of victim/survivor support
services, including legal services. It argued that this independence is
instrumental to Indigenous women accessing a service:
Issues of safety, confidentiality, perceived and actual
conflict of interest and lack of holistic support services (as are available
through the FVPLS program) mean that the ATSILS are not the most appropriate
organisations to be the primary providers or auspices of services to Indigenous
victims/survivors...Indigenous women experiencing family violence or sexual
assault must be assured of the right to access culturally sensitive, safe and
confidential legal assistance regardless of their location and independent of
the service which the perpetrator, their family or friends might access.[65]
8.96
The Women's Legal Services Australia and Women's Law Centre WA agreed
that Indigenous women hold 'very deep concerns' about the Western Australia
auspice body and the consequent, broader impact on Indigenous women's ability
to access legal assistance services:
If women are involved in a dispute or are the victims of an
offence, it is more than likely that the offender, usually male, will have
accessed [WA Legal Aid or the Aboriginal Legal Services of WA]. So, if women,
say, on another matter, want to access some support, get some legal advice and
so on, because of the conflict of interest issue they cannot go to Legal Aid or
to the ALS.[66]
8.97
In response to questions from the committee, NAAJA rejected that
Indigenous women would not be able to access its services. In its view, professional
'Chinese walls' appropriately insulate its family, civil and criminal law
practice areas.[67]
The Aboriginal Legal Service of WA acknowledged however a probable community
perception of a conflict of interest in spite of its efforts to dispel the
perception, for example: by representing female accused; and employing female legal
practitioners).[68]
8.98
On this note, the absence of female legal practitioners in FVPLS units
was highlighted as a concern. Ms Hannah McGlade submitted that this discourages
Indigenous women from accessing the service:
This is highly problematic in view of the traditional
Aboriginal culture and separation of genders, and particularly the notion of
‘shame’ that is strongly associated with sexual abuse. Overwhelmingly the victims
of family violence are women and girls and a lack of women lawyers can mean
that the services are inaccessible to victims. Similarly, the increasing employment
of Aboriginal men in the service co-ordinator role also raises issues of gender
and accessibility.[69]
Rural, regional and remote coverage
only
8.99
In 2006‑07, there were 31 FVPLS units in RRR identified high need
areas of Australia.[70]
Submissions and testimony argued that Indigenous victims/survivors in
metropolitan areas experience the same legal need, and consequently:
It remains critical that increased funding be allocated to
the [FVPLS] program to better resource existing units and to further expand
geographic coverage including urban areas.[71]
8.100
The Aboriginal Family Violence Prevention Legal Service Victoria, for
example, provided state‑wide services until 2007‑08 when financial
considerations reduced services to the Barwon‑South West and Gippsland
regions only. As a result, the urban client base (approximately 48 per cent of
Victoria's Indigenous community) is neither funded for nor serviced by the
FVPLS program.[72]
8.101
Submitters acknowledged the policy reasons for restricting FVPLS units
to RRR areas only, but essentially argued that there is a disconnect between
policy, legal need and the appropriateness of legal services. The Aboriginal
Family Violence Prevention Legal Service Victoria, for example, stated:
We understand the policy of not funding FVPLS services in
urban areas to be based upon the premise that Indigenous victims/survivors in
urban areas have access to a broader range of mainstream services and that
funding priorities rest with rural/remote locations. However, restricting
funding to limited rural/remote geographic areas significantly weakens the
FVPLS program as a whole and discriminates against Indigenous women and
children in urban areas who are impacted by family violence and sexual
assault...To ensure equality before the law and optimum legal services for
Indigenous women in Australia, the FVPLS program must be extended.[73]
8.102
Similarly, Ms Megan Davis submitted that the policy rationale fails to
appreciate the hidden difficulties that Indigenous women face in accessing mainstream
legal assistance services or culturally appropriate services. Ms Davis
intimated that the data on which the rationale is based be re‑examined:
The decision to only fund rural and remote services is
supposedly evidence based. However I do not know on what methodological basis this
decision is formulated but I would ask the Committee to investigate this
further given the majority of Aboriginal people live in urban areas and given
the evidence based reality of violence against Aboriginal women in urban areas.[74]
8.103
Evidence to the inquiry also highlighted broader cultural and social
considerations supporting the establishment of metropolitan FVPLS units. Ms
Rowena Puertollano, for example, explained the importance of extended familial
relationships within the Indigenous community. Ms Puertollano argued that the
lack of metropolitan‑based services prevents victims/survivors in RRR
areas from relocating to metropolitan areas, and using extended family and
support networks:
The lack of culturally appropriate Aboriginal Women's Legal
services not being available in the 'city' will see, Aboriginal women,
children, victims/survivors being forced to accept’ the surroundings and
environment they live in and the ‘perpetrator’s families subjecting them to
more abuse because they want better for their families. This situation also
denies women, families and victims and survivors, the right and opportunity to
strengthen themselves and live a violence free life.[75]
8.104
In 2005, the Joint Committee of Public Accounts and Audit examined the
placement of FVPLS units throughout Australia. Its report Access of Indigenous
Australians to Law and Justice Services found that:
If FVPLSs are to be considered as major Indigenous specific
providers of family violence prevention, family and civil law services, these
services should not be confined to regional and remote Australia but rather,
like ATSILSs, be located in all areas of significant need.[76]
8.105
The report contained a recommendation for the department to acknowledge
urban Indigenous communities' need for family/domestic violence, family and
civil law services, and locate FVPLS units accordingly.[77]
8.106
The Australian Government responded that FVPLS units are established in
high need identified areas, and with reference to a multitude of additional
considerations:
The Government will continue to give priority assistance to
those areas with the most acute requirements for service. The FVPLS units
themselves will also make similar determinations with regards to their own
allocation of resources...In determining the locations of their service outlets,
units must also have regard to the locations of related services, courts and
prisons within the geographic area being serviced. Indigenous communities based
in major urban centres have greater access (than do those in remote or regional
areas) to other legal service providers such as community legal centres, legal
aid commission offices, Indigenous legal aid offices or ATSILS, other
Indigenous support and referral services, solicitors undertaking pro bono work
and Indigenous women’s legal service units.[78]
Review of the FVPLS program
8.107
At the Perth and Melbourne public hearings, evidence to the committee
suggested that the FVPLS program should now be reviewed.[79]
While there are a number of options, submitters and witnesses briefly suggested
extension and strengthening of the existing program,[80]
and a new Indigenous women's legal service (see below).
8.108
The Aboriginal Legal Service of WA, for example, told the committee that
the model currently operating in Western Australia was 'flawed in its genesis',
with auspiced FVPLS units having next to no chance of long‑term
sustainability:
What happened was that attempts were made to set up a standalone
legal service, agencies and family violence prevention legal services in remote
areas, which did not have the faintest possibility of being sustainable entities.
It is impossible to set up a family violence prevention legal service in
Fitzroy Crossing on its own unless it is incredibly well resourced. You cannot
pay a lawyer $60,000 to live in a place like Fitzroy Crossing as the only
lawyer in town, when the nearest professional support is 600 kilometres away in
Broome. It is not going to work....They needed to have appropriate infrastructure
and governance, managerial and administrative supports.[81]
8.109
The Aboriginal Legal Service of Western Australia added:
If the FVPLS model is reviewed...consideration should be given
to ensuring that principles and strategies are identified to ensure that
Indigenous women are able to access justice from a range of culturally
appropriate legal service providers covering a range of areas of law...Indigenous
women may be reluctant to access a particular service provider because of the
sensitive nature of their issues and concerns about confidentiality in their
communities.[82]
8.110
In 2003‑04, the committee expressed concern regarding Indigenous women's
lack of access to justice, including in relation to family/domestic violence
matters, 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.[83]
8.111
The committee made three recommendations aimed at addressing the
specific legal needs of Indigenous women. In addition to its earlier Recommendation
31, these were that:
The Commonwealth Government commission a comprehensive
national study to determine accurately the legal needs of Indigenous women.
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.[84]
8.112
In 2006, these three recommendations were under consideration by the
Australian Government. The government agreed that:
-
information on the legal needs of Indigenous women was limited,
and there was merit in examining issues surrounding perceived gender bias
relating to Indigenous women's access to legal services; and
-
improving legal and related services to Indigenous women was a
priority area of need.[85]
8.113
All these issues were to be considered in the context of the (then) new
Council of Australian Governments' National Framework of Principles for
Government Service Delivery to Indigenous Australians. The committee is not
aware whether, and if so, how, its recommendations were addressed under that
framework.
8.114
In this inquiry, the committee heard that there continues to be a lack
of awareness amongst all stakeholders involved in the criminal justice system
regarding the needs, conditions and pressures facing Aboriginal women and
children.[86]
8.115
In view of Recommendations 1 and 2, the committee agrees in
principle with Recommendation 29 of its 2004 Report, but does not need
to reiterate that recommendation.
Strategic approach to women's legal
services
8.116
In 2005, the Joint Committee of Public Accounts and Audit commented on the
'myriad of programs and services that provide legal services to Indigenous
women', recommending that:
The Attorney‑General’s Department rationalise funding
of Indigenous legal services by incorporating Indigenous Women’s Projects, that
are currently administered through mainstream Community Legal Centres, into the
Family Violence Prevention Legal Services program.[87]
8.117
In rejecting this recommendation, the Australian Government stated that:
The Indigenous Women’s Projects were established to provide
broadly based legal aid and community support to women in need. FVPLSs were
established with very specific guidelines and goals. There is no obvious
advantage to be had by subsuming one program within the other, apart from the
administrative synergies that have already been achieved [by the creation of
the department's Indigenous Justice and Legal Assistance Division].[88]
8.118
However, evidence to the committee stated that the non‑rationalisation
of Indigenous women's legal services deprives Indigenous women of access to justice,
and more needs to be done to strategically address the needs of Indigenous
women. The Aboriginal Family Violence Prevention and Legal Service Victoria,
for example, told the committee that:
Strategic development of Indigenous women's legal services
across Australia which recognizes state and territory Indigenous diversity has
been lacking but is required. The role of the FVPLS program, the Aboriginal and
Torres Strait Islander Legal Services (ATSILS) and the Indigenous Women's
Project funding should be clarified and refined to ensure optimum outcomes for
Indigenous women.[89]
8.119
In this regard, and with broader application, the Aboriginal Family
Violence Prevention and Legal Service Victoria told the committee that a
collaborative approach by governments would greatly improve Indigenous women's
law and justice outcomes.[90]
The Indigenous Law and Justice Framework
8.120
In 2007, the department released a draft National Indigenous Law and
Justice Strategy. In relation to Indigenous women, the draft strategy remarked:
Over 10 years ago Indigenous women were found to be the most
legally disadvantaged group in Australia...Despite many improvements, such as the
introduction of specific legal services for Indigenous women, significant
disadvantages still exist. The focus of recommendations of the Royal Commission
into Aboriginal Deaths in Custody (RCIADIC) related to improving justice
outcomes for men, who comprise the overwhelming majority of Indigenous
detainees, offenders and prisoners...Services to Indigenous women need to be
targeted, culturally sensitive and more work needs to be done on assessing
unmet needs.[91]
8.121
At its August 2009 meeting, the Standing Committee of Attorneys‑General
(SCAG) endorsed the principles of the draft framework as a national policy
approach, and will work toward finalising the draft framework by 30 September
2009.[92]
This includes establishment of the National Indigenous Law and Justice Advisory
Body, which will provide expert high level policy advice on Indigenous law and
justice issues.[93]
8.122
In general, submitters and witnesses supported the establishment of the
National Indigenous Law and Justice Advisory Body, with evidence emphasising
the importance of increased capacity for Indigenous people to engage in law and
policy making processes and outcomes.[94]
8.123
However, concern remained for the special needs of Indigenous women,
with submissions arguing that, once again, there is no strong focus on an Indigenous
women's law and justice strategy. The Aboriginal Family Violence Prevention
& Legal Service Victoria, for example, told
the committee:
The National Indigenous Law and Justice Framework recently
released by the Commonwealth AGD for comment does not include the strong focus
on Indigenous women's law and justice as was contained in the 2007 draft
National Law and Justice Strategy from which the framework was developed.[95]
8.124
At present, there is no national Indigenous women's legal service, with
most, but not all, states/territories having their own Indigenous women's legal
service program or an Indigenous women's program administered by a women's
legal service.
8.125
As indicated earlier in this chapter, some evidence presented to the
committee suggested that a better approach to Indigenous women's law and
justice might be to create a national Indigenous women's legal service.
8.126
The Aboriginal Family Violence Prevention & Legal Service Victoria expressed
the common view that such a service must be independent, including financially
independent of both ATSILS and mainstream women's legal services:
FVPLS Victoria therefore strongly supports the funding of
Indigenous women's legal services across Australia...Funding for Indigenous
women's legal services should not be attached to mainstream Women's Legal
Services. It is critical that Aboriginal women have ownership of and drive
future initiatives to advance law and justice outcomes. This is the key to
successful government engagement and will lead to real on the ground change... The
Indigenous Women's Legal Services would of course provide assistance in a
broader range of legal matters than the areas currently stipulated within the
FVPLS program. This would strengthen law and justice services to Aboriginal
women significantly, would provide far greater flexibility and integration in
service provision and vastly improve law and justice outcomes.[96]
8.127
Women's Legal Services Australia and the Women's Law Centre WA agreed,
elaborating on the importance of Indigenous women in developing and providing a
service effective in the provision of access to justice:
It is not that Aboriginal women are excluded from the
services currently provided by Women’s Legal Services; it is that the need is
so great in providing direct services to Aboriginal women and also that
providing services to Aboriginal women requires community connection and
cultural appropriateness. All of those things are best achieved by having a service
that is developed and managed by Aboriginal women...People talk about providing a
culturally appropriate service and say they do this and that for Aboriginal women,
but when we look at the actual practice and processes that are being engaged in
we have to say as Aboriginal women that it has not been appropriate for us. The
net effect has been to, if you like, silence the Aboriginal women’s voice and
to undermine us and undermine our position...When we talk about cultural
appropriateness it is not just being appropriate for men; it is for our women and
making sure that proper processes are engaged in to make sure that women are
not being marginalised further.[97]
8.128
The committee heard that the FVPLS program could be subsumed within a
national Indigenous women's legal service program, with appropriate funding, re‑badging,
and referral of Indigenous male clients to alternate legal service providers.
8.129
For this inquiry, the committee received limited evidence regarding
Indigenous women's legal needs. This is undoubtedly part of a larger problem,
being an overall lack of empirical data on Australian legal needs. However, the
wealth of material available to the committee indicates that Indigenous women
are not getting adequate legal assistance to afford them access to justice.
8.130
The committee notes that a dedicated Indigenous women's legal
service might better provide for that need, as well as relieve pressures on
other legal assistance service providers and the Australian justice system.
8.131
The committee cannot say what effect the National Indigenous Law and
Justice Strategy or National Indigenous Law and Justice Advisory Body will have
on Indigenous women's access to justice. The committee hopes that Indigenous
women are properly represented on the latter, and that in that capacity,
Indigenous women are able to have a greater impact on Indigenous women's law
and social justice policies, including the development of a strategic approach
to such issues.
8.132
In the meantime, the committee notes the Australian Government for its
initiatives to improve the lives of Indigenous people, including their access
to justice. However, the committee observes that, on evidence to the inquiry
alone, it is clear that the issue of Indigenous peoples' access to justice
requires far more attention.
8.133
In an effort to address this and other issues raised throughout the
inquiry, the committee makes the following final recommendation.
Recommendation 31
8.134
The committee recommends that the Australian Government respond to this
report no later than March 2010.
Senator Guy
Barnett
Chair
Navigation: Previous Page | Contents | Next Page