Ludlum, Scott; Lawry, Chiara --- "Closing the Justice Gap for Indigenous Australians" [2010] IndigLawB 11; (2010) 7(17) Indigenous Law Bulletin 12

Closing the Justice Gap for Indigenous Australians

Senator Scott Ludlam and Chiara Lawry

On 11 February 2010 Prime Minister Kevin Rudd delivered his second annual 'Closing the Gap Statement'.^[1] The Statement addressed the mortality and education gap and responded to the housing and employment disadvantage suffered by Indigenous Australians. The Statement did not however acknowledge the 'justice gap' faced by Aboriginal and Torres Strait Islander people. This important issue was explored by the Senate Standing Committee on Legal and Constitutional Affairs (‘the Committee’) in its Access to Justice report, (‘the report’),^[2] released on 9 December 2009.

In early 2009, Senator Scott Ludlam initiated a Senate Inquiry (‘the Inquiry’) to promote actionable solutions to improve access to justice.^[3] The terms of reference for the Inquiry provided for a thorough review of the barriers faced by individuals in accessing justice. They included the adequacy of legal aid, the measures that could reduce the length and complexity of litigation, alternative means of delivering justice, the adequacy of resource arrangements for community legal centres, and the ability of Indigenous people to access justice.^[4]

The sentiment expressed in many of the 68 submissions received by the Committee was clear: it is now time for action – improving access to justice must become more than rhetoric. This article explores the evidence presented to the Inquiry about issues faced by Indigenous Australians.

Indigenous People and Access to Justice – A Question of Funding

The Senate Committee Report notes that 'Indigenous people remain the most socially and economically disadvantaged members of the Australian community.'^[5] This disadvantage, coupled with the prohibitive cost of private services, means that Indigenous people are highly reliant on community legal support. However, evidence presented to the Inquiry indicates that Indigenous people, especially women, are dissuaded from approaching mainstream legal services.^[6] The National Pro Bono Resource Centre told the Committee that Indigenous Australians 'are relatively less likely to seek help from mainstream providers due to a distrust of the legal system, language barriers and [their] perceived lack of cultural awareness’.^[7]

In recognition of the need for culturally appropriate legal services, the report cites the Law Council of Australia, noting that '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.'^[8]

In this context, Aboriginal and Torres Strait Islander Legal Services (‘ATSILS’) play an important role in Indigenous access to justice. These are distinct from legal aid in that they provide culturally sensitive services. Yet, notwithstanding the extraordinary levels of disadvantage suffered by Aboriginal people, the Inquiry received evidence demonstrating that ATSILS are the most under-funded sector of all legal service providers. This funding inadequacy severely hinders access to justice for Indigenous people.^[9]

The Law Council of Australia told the Committee that real funding for ATSILS has decreased 40% since 1997.^[10] This funding decrease directly impacts on the ability of ATSILS to adequately address their clients’ legal needs. The Aboriginal Legal Service of Western Australia, for example, gave evidence to the Committee that its

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...simply because [it is] not provided with enough money to be able to provide those services.^[11]

Professor Chris Cunneen and Melanie Schwartz provided detailed budget comparisons for the North Australian Aboriginal Justice Agency ('NAAJA') and the Northern Territory Legal Aid Commission ('NTLAC'). The comparison found that NTLAC has a 59% greater budget than NAAJA.^[12] This funding inequity exists even though NAAJA undertakes three times as many criminal matters, as well as a greater total number of criminal, civil and family law matters combined.^[13] These examples are far from anomalous; the Committee report notes that 'the preponderance of evidence indicates that ATSILS are not fully funded.'^[14]

The Commonwealth Attorney-General's Department submitted to the Committee that the states and territories make very little, if any, contribution to Indigenous legal aid and that the Australian Government is exploring a more collaborative approach to funding.^[15]

In response, the Committee recommended that the Federal, State and Territory Governments inquire into and report on joint funding for Legal Aid and related services in order to achieve a more equitable apportionment of this financial responsibility.^[16] The Committee also recommended that

the Australian Government increase the level of funding for Indigenous legal services with a view to sufficiently resource this sector of the legal aid system to meet the needs of Indigenous peoples, including appropriate loading for extra service delivery costs.^[17]

Barriers to Justice – Language, Literacy and Geography

To be effective, funding increases need to factor in the particular needs of Indigenous Australians in accessing justice. That is, the costs of service delivery must take into account and respond to issues of language, culture, literacy and remoteness.

One area that the Committee highlighted as a key concern is the difficulty associated with accessing Indigenous language translators. According to NAAJA, Aboriginal defendants often consent to orders that they do not understand or that are inappropriate to their case because of language barriers.^[18] The Australian Human Rights Commission submitted that 'the nuances of Aboriginal English can lead to misunderstandings between clients and their lawyers (and the justice system).'^[19] The Women's Legal Service South Australia went further, telling the Committee that, 'more often than not matters proceed through court in the absence of interpreters contrary to all notions of justice.'^[20]

While some funding has been allocated to interpreting services for Indigenous people,^[21] accessing interpreters is difficult due to high costs and low availability. This problem is compounded by difficulties associated with interpreting Aboriginal languages that may not have equivalent terms to those used commonly in the mainstream justice system.^[22] The report therefore recommends that the Federal 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.^[23]

What about Indigenous Women?

Indigenous women are chronically disadvantaged in terms of their access to justice.^[24] As Megan Davis of the Indigenous Law Centre put it,

Aboriginal women are the most vulnerable and marginalised group in the Australian community.^[25]

This is not a new observation. The Australian Law Reform Commission, in its report Equality before the Law, identified Indigenous women as the most 'legally disadvantaged group in Australia.'^[26] There is a critical need for legal services that are culturally appropriate, accessible, and are specifically tailored to their complex needs.

For instance, submissions to the Committee suggested that ATSILS, under present funding arrangements, do not respond equally to the legal needs of men and women living in Indigenous communities. The disproportionate allocation of services is particularly stark in cases involving domestic violence. ATSILS are intended to service the legal needs of all Indigenous people. But in most instances, by the time women approach these organisations seeking assistance, they are already providing legal representation to the accused. This creates a conflict of interest that frequently makes it difficult, if not impossible, to provide appropriate service to the women affected. Moreover, many ATSILS have a policy that prohibits the representation of one Indigenous person against another.^[27] It is perhaps not surprising that Indigenous women will not approach ATSILS because of the role they play in representing perpetrators; the Committee received evidence that many women feel unsafe in accessing these services.^[28]

As early as 1993, the Australian Law Reform Commission found a gender-bias in the allocation of ATSILS services.^[29] The entrenched under-funding of ATSILS has resulted in a shift towards service delivery that responds to the most ‘urgent’ matters first. In practice, the prioritisation of criminal prosecutions means that the limited funds available are disproportionately allocated in favour of Indigenous men; women must make the best of what is left over. In most cases, this is very slim pickings. The Aboriginal Legal Service of Western Australia, for example, estimated that criminal law matters represent approximately 80% to 90% of its workload.^[30]

The Australian Government funds the Family Violence Prevention Legal Service Program ('FVPLS') to assist Indigenous women who are either victims of, or are at risk of, family violence or sexual abuse. The Committee heard that the program is not adequately funded^[31] and that, to redress the shortfall, auspice arrangements have been established between ATSILS and FVPLS units. Given the limited time and resources allocated by ATSILS to women experiencing family violence, such arrangements are ‘seriously flawed'.^[32] The Aboriginal FVPLS Victoria submitted that

Aboriginal legal services are not the appropriate services to support victims and survivors, due to actual and perceived conflicts of interest and their significant work with offenders.^[33]

Concern was also raised in submissions to the Committee about the absence of female legal practitioners in FVPLS units and the geographic distribution of this program. Ms Hannah McGlade submitted that the lack of female legal practitioners discourages women from accessing the service.^[34] Additionally, although there are 31 FVPLS units in rural, regional and remote areas, the Committee received evidence that more funding is needed to expand the FVPLS program to incorporate urban areas.^[35]

Originally, the decision to not fund FVPLS units in metropolitan areas was based on the assumption that Indigenous women living in cities have greater access to mainstream services. But this fails to acknowledge the difficulties Indigenous women face in approaching these facilities. At the Perth and Melbourne public hearings, evidence to the Committee suggested that the FVPLS program should now be reviewed.^[36] This is consistent with the 2005 findings of the Joint Committee of Public Accounts and Audits, which examined the distribution of these units around Australia. Its report, Access of Indigenous Australians to Law and Justice Services found that FVPLS 'should not be confined to regional and remote Australia but rather, like ATSILS be located in all areas of significant need.'^[37]

It has been recommended to the Committee that the Government increase funding under the Commonwealth Community Legal Services Program, to fund and monitor programs to assist Aboriginal women in accessing legal services. But to properly redress the issues and challenges outlined above, as submitted to the Committee by the Women's Legal Service Australia, it is essential that Aboriginal women be involved in the development, implementation and delivery of services developed for them.^[38] This is an important way to ensure culturally appropriate services that are responsive to community needs and that provide effective law reform advocacy.^[39]

The Bigger Picture – The Need for Comprehensive Legal Services

Indigenous communities have complex legal needs that go far beyond matters of crime and violence. Aboriginal and Torres Strait Islander communities desperately need legal assistance in disputes concerning family law, tenancy and housing, credit and debt, child protection, consumer rights, employment and discrimination.^[40] In short, Indigenous communities have a raft of unaddressed other civil law needs that call for urgent attention. At present, ATSILS are unable to provide these services and no other generalist legal services exist to cater to such cases. National Legal Aid ('NLA') submitted to the Committee that Indigenous legal services have never been sufficiently funded to provide comprehensive legal practice, meaning that these needs must either be met by mainstream legal assistance services, must be dealt with via self-representation in the court system, or are simply neglected altogether.^[41] NLA said 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.^[42]

On 2 April 2009, the United Nations Human Rights Committee issued Australia’s ‘Human Rights Report Card’.^[43] The Committee noted ‘with concern the lack of adequate access to justice for marginalised and disadvantaged groups including Indigenous people'.^[44] The validity of this observation was consistently confirmed during the Senate Inquiry. What exists today is an enormous justice gap in the legal services and resources available to Indigenous people compared with middle Australia. This gap must be addressed.

Conclusion

Despite the fundamental importance of access to justice to any fair and democratic society, deep inequality exists between Indigenous and non-Indigenous Australians. This is an area that must be improved for all Australians. The final recommendation of the report is that the Government respond by no later than March 2010.^[45] Now, more than ever, is the time for the real work to begin on improving access to justice.

Senator Scott Ludlam is the Australian Greens Spokesperson for Legal Affairs and a member of the Senate Standing Comi5ttee on Legal and Constitutional Affairs.

Chiara Lawry is Senator Ludlam's research and policy assistant and a law student at the Australian National University

^[1] Commonwealth, Parliamentary Debates, House of Representatives, 11 February 2010, 1168 (Hon. Kevin Rudd PM)

^[2] Senate Standing Committee on Legal and Constitutional Affairs, Commonwealth of Australia, Access to Justice (2009).

^[3] Commonwealth, Parliamentry Debates, Senate, 5 February 2009, 399 (Senator Scott Ludlam).

^[4] Senate Standing Committee on Legal and Constitutional Affairs, above n 2, v.

^[5] Ibid, 137.

^[6] See for example, submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 51, 9 (Women's Legal Centre ACT and Region).

^[7] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 49, 15 (National Pro Bono Resource Centre).

^[8]Senate Standing Committee on Legal and Constitutional Affairs, above n 2, 137.

^[9] See for example Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 50, 13 (Public Interest Advocacy Centre).

^[10] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 12, 24-25 (Law Council of Australia); Senate Standing Committee on Legal and Constitutional Affairs, above n 2, 145.

^[11] Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Perth, 13 July 2009, 36 (Peter Collins, WA Aboriginal Legal Service).

^[12] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Submission 69, 7 (Professor Chris Cunneen and Melanie Schwartz).

^[13] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Submission 70, 7 (Australian Human Rights Commission).

^[14] Senate Standing Committee on Legal and Constitutional Affairs, above n 2, 143.

^[15] Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 27 October 2009, 51 (Mr Peter Arnaudo, Assistant Secretary, Attorney-General’s Department).

^[16] Senate Standing Committee on Legal and Constitutional Affairs, above n 2, 143, Recommendation 26.

^[17] Ibid, 147, Recommendation 27.

^[18] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 6, 9 (North Australian Aboriginal Justice Agency).

^[19] Australian Human Rights Commission, above n 13, 6.

^[20] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 59, 11 and 21 (Women's Legal Service South Australia).

^[21] Australian Law Reform Commission, Interim Report- Equality Before the Law: Justice for Women (1994) 2.28.

^[22] Simon Rice and Phillip Swain, In the Shadow of the Law (3^rd ed, 2009), 29.

^[23] Senate Standing Committee on Legal and Constitutional Affairs, above n 2, Recommendation 28.

^[24] See for example, submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 38 (Aboriginal Family Violence Prevention & Legal Service Victoria); and Women's Legal Centre (ACT and Region) above n 6.

^[25] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 17, 1 (Megan Davis).

^[26] Australian Law Reform Commission, Equality before the Law: Justice for Women, Report 69 (1994) Chapter 5, Recommendtion 5.2.

^[27] Ibid, 5.31.

^[28] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 8 (Rowena Puertollano).

^[29] Australian Law Reform Commission, above n 26, para 5.31.

^[30] See Peter Collins, above n 11.

^[31] Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Victoria, 15 July 2009, 19 (Antoinette Braybrook, Aboriginal Family Violence Prevention & Legal Service Victoria).

^[32] Senate Standing Committee on Legal and Constitutional Affairs, above n 2, 58.

^[33] Ms Antoinette Braybrook, above n 31, 18.

^[34] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 4, 3 (Hannah McGlade).

^[35] Aboriginal Family Violence Prevention & Legal Service Victoria, above n 24, 2, 8-9.

^[36] Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Melbourne, 15 July 2009, 56, (Norman Reaburn, Chair, National Legal Aid).

^[37] Joint Committee of Public Accounts and Audit, Access of Indigenous Australians to Law and Justice Services (2005) 38.

^[38] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 56, 1 (Women's Legal Services Australia).

^[39] Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Perth, 13 July 2009, 21 (Kate Davis, Women's Legal Services Australia).

^[40] See general discussion in Melanie Schwartz and Chris Cuneen, ‘From Crisis to Crime: The Escalation of Civil and Family Law Issues to Criminal Matters in Aboriginal Communities in NSW’[2009] IndigLawB 45; , (2009) 7(15)Indigenous Law Bulletin 18; Loretta de Plevitz and Heron Loban,’Access to Information on Civil Law for Remote and Rural Indigenous Peoples’ [2009] IndigLawB 46; (2009) 7(15) Indigenous Law Bulletin 22.

^[41] Submission to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, Submission 34, 32 (National Legal Aid).

^[42] Ibid, 33.

^[43] Human Rights Committeee, Consideration of Reports Submitted by States Parties under article 40 of the Covenant, Concluding Observations of the Human Rights Committee Australia, CCPR/C/AUS/CO/5, 7 May 2009.

^[44] Ibid, 6.

^[45] Senate Standing Committee on Legal and Constitutional Affairs, above n 2 Recommendation 31.