M2 - Learner Manual
24. Barriers to Accessing the Justice System
Aboriginal people and access to civil law remedies
It is well known that Aboriginal people are over-represented in our criminal justice system. What is less-well recognised, or analysed, is the evidence that they do not access civil remedies as often as other Australians.
In 2004 the Law and Justice Foundation published the Data Digest, the first report on its Access to Justice and Legal Needs Program. The report is a compendium of service usage data from NSW legal assistance and dispute resolution services between 1999 and 2002 and identifies a number of interesting points in respect of Indigenous people's access to legal services. First, it shows that the proportion of enquiries from Aboriginal people comprised four per cent of all those received by duty solicitors at Legal Aid NSW. The equivalent figure at NSW community legal centres was five per cent. Both figures increased steadily between 1999 and 2002. This is disproportionately high for a group that represents just 1.9 per cent of the state's population. However, inquiries by Indigenous people to the Legal Aid NSW Advice Service were about two per cent of all inquiries, a figure that has not altered significantly since 1999.
The areas of greatest interest with inquiries to the Legal Aid NSW Advice Service were the areas of crime (accounting for 36 per cent of inquiries) and family law (31 per cent of inquiries). However, considering that Indigenous people are overrepresented at much higher rates in the criminal justice system and as victims of racial discrimination, Indigenous people should be accessing these services at a greater rate than what these statistics indicate. In its report on public consultations for the same project, the Law and Justice Foundation identified the following barriers confronting Indigenous people in accessing legal aid services:
· a reluctance to involve outsiders in matters that are considered private;
· a lack of awareness of Indigenous people of the scope and ability of the law to resolve certain types of problems;
· the limited ability of the law and traditional legal approaches to resolve problems that in many cases involve not just legal but also significant political, historical and cultural issues;
· the reliance on documentary evidence to substantiate legal claims and its reluctance to accept or rely on anecdotal or oral evidence by Aboriginal people;
· long term distrust of and previous negative experience with the legal system;
· the formality of the legal system and its services;
· lack of cultural awareness, sensitivity and compassion among justice system staff and legal service providers;
· lack of confidence in confidentiality, support and empathy in accessing Legal Aid NSW services;
· lack of Aboriginal personnel;
· lack of relationship between Legal Aid offices and local Aboriginal communities;
· intimidation in approaching legal services;
· lack of awareness of the services of Legal Aid NSW;
· the need to book Legal Aid services;
· location of Legal Aid offices;
· and lack of public transport to Legal Aid's offices.
Distrust of the legal system is just one barrier to overcome when encouraging Aboriginal people to explore their civil law rights.
Many do not have adequate education or knowledge of government agencies, whilst others cannot overcome an inherent distrust of public servants. Facing any legal system and its formalities is a daunting experience for everybody, not just Aboriginal people. However, it becomes yet more frightening for those people who only know of a system involving the police and criminal charges. The fear, and often misunderstanding, by some Aboriginal people that the law is only for responding to police charges leaves our people with many civil law matters being unpursued or unresolved. Civil matters such as welfare rights, housing, discrimination law, consumer rights, credit and debt, employment law, motor accidents compensation, crimes compensation, social security, intellectual property, negligence and family law are just some of the areas of law where avenues for redress are perceived as so far removed from the familiar criminal justice system that they are simply not worth worrying about. The NSW Legal Aid Commission, community legal centres and the Aboriginal legal services provide a valuable service to our people, often without adequate funding or due recognition. However, when accessing these particular services, Indigenous people are sometimes confronted by a lack of cultural awareness, sensitivity or compassion on the part of the solicitors. Unfortunately, this may get worse before it gets better. It will be exacerbated by the proposed Aboriginal legal services tendering scheme because Indigenous lawyers are under-represented in law firms and community legal centres. Aboriginal legal services, under-resourced as they are, have necessarily focused their efforts on helping Indigenous people ensnared by the criminal justice system. Many ALS offices simply do not have the requisite knowledge base or resources on hand to assist Aboriginal people in civil law matters - especially in rural and regional areas of the state. Consequently, an Indigenous family may live with injuries for which they will never be compensated, become involved in unjust financial arrangements, accept racial vilification or suffer under adverse administrative decisions. Domestic violence, residence and contact disputes and abduction of children are rarely dealt with by the Aboriginal legal services. Whilst the Aboriginal and Torres Strait Islander legal services in metropolitan Sydney employ a family law solicitor from time to time, services in far western NSW and north-western NSW generally have not had family lawyers and do not usually act in such matters. At present the Legal Aid Commission has an arrangement with the ALS, whereby LAC officers visit the ALS office at Blacktown to provide advice to clients in civil law matters. These officers attend each fortnight on a Friday and, on average, address inquiries from three Indigenous people per visit. Unfortunately, these outcomes can be directly attributed to the ALS prioritising their case loads and directing their allocated funding to the high number of criminal law matters that they handle.
Too many Indigenous people simply do not know anything about potential civil remedies. In the past, Indigenous people were subjected to racist and discriminatory treatment and had no alternative but to accept it. Sadly, this acceptance is intergenerational. Many Aboriginal people today are still unaware that they have equal rights and may have civil remedies available to them. There are a number of ways highlighted by the Law and Justice Foundation through which all lawyers can help to bring some balance into the civil law arena for Aboriginal people. The first is to rebuild trust and confidence in the legal system generally and the profession in particular. One way to achieve this is to employ more Indigenous lawyers at the front line of the Legal Aid Commission, the community legal centres, the Aboriginal legal services and especially in those law firms who are involved in the legal services tendering process. Education of Aboriginal culture and history needs to go further for the legal profession. Most importantly we all need to ensure that Aboriginal people are themselves educated and are aware that there are civil law services in place available to them. It has been 35 years since a collective body consisting of both Aboriginal and non-Aboriginal people established the Redfern Aboriginal Legal Service. This group founded the ALS in response to the continual police harassment of Aboriginal people and the lack of legal representation afforded to them. After its establishment, the ALS provided an advocate for Aboriginal people and produced a dramatic shift in the dynamics of the criminal justice system. It provided a substantial reduction in miscarriages of justice but more importantly it provided the initial steps towards equality and Aboriginal empowerment in the NSW justice system. This positive change would not have occurred without the support and assistance of volunteer white lawyers and Aboriginal people working together for a common cause. The injustices and disadvantages faced by Aboriginal people in the criminal jurisdiction motivated and inspired those in 1970 to act and bring about a level of equality. The time has come for our generation to continue that legacy and not let civil law be a casualty of that battle.
Sourced on 3/8/22: http://classic.austlii.edu.au/au/journals/NSWBarAssocNews/2005/48.pdf
The Law Society of Western Australia makes the following recommendations on access to justice to address the overrepresentation of Indigenous people within Western Australia’s judicial system:
1. Improve funding to Community Legal Centres (CLCs), in particular to the Aboriginal Legal Service of Western Australia (ALS) and the Family Violence Prevention Legal Service (FVPLS) The overrepresentation of Indigenous people within our judicial system is largely due to limited access to justice. The funding of CLCs has been proven to greatly reduce incarceration rates. In relation to Indigenous people, dedicated legal services are the preferred and most culturally appropriate provision of community legal services. Research shows that Indigenous people, and in particular women, are dissuaded from approaching mainstream legal services, with language barriers and cultural sensitivity being the main reasons for this. Greater funding to Indigenous legal services, such as ALS and FVPLS would provide greater access to justice for Indigenous people and would greatly decrease their incarceration rate.
2. Improve funding for interpretation and translation services within the Courts, allowing Indigenous people to communicate with the Court in their native Australian language. For some Indigenous people, English is a second language. This creates confusion and misunderstandings in the legal system and procedures. Justice would be improved if Indigenous people were given better access to interpretative and translation services in relation to judicial proceedings. Indigenous people could be granted a statutory right to have interpreting services available at all stages of the judicial proceedings, as is the case in certain areas of Canada. They could also have the statutory right to lodge documents and correspond with the court in their native languages, as is the case in certain areas of Norway. In order to do this, funding for interpretation and translation services within the court must be improved.
3. Improve funding for Indigenous judicial and corrective service staff. It has been proven in the Rangatahi Youth Courts of New Zealand that the incorporation of cultural beliefs and practices into court procedure places greater expectations on Indigenous offenders and causes greater remorse. The effect that these practices have had on court proceedings can also be applied to other areas of the judicial system. By using Indigenous judicial and corrective service staff, an element of cultural expectation can be applied to the offender and used to encourage better social behaviour in the future. It also improves communication between accused persons and the corrections system, allowing the accused to better understand the reasoning behind what is happening, and for the judicial and corrective service staff to better understand the offending behaviour.
Sourced on 3/8/22: http://www.lawsocietywa.asn.au/wp-content/uploads/2015/10/2017OCT06_LawSociety_BriefingPapers_AccessJusticeIssues_ATIPIA.pdf