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Aboriginal and Torres Strait Islander Legal Services and Criminal Law Matters
Costs of Increased Incarceration
Aboriginal and Torres Strait Islander Legal Services and Family and Civil Law Matters
Impediments to Provision of Family and Civil Law Services by Aboriginal and Torres Strait Islander Legal Services
Family and Civil Law Services Provided by Aboriginal and Torres Strait Islander Legal Services
Committee Comment and Recommendation
2.1 | The distribution of ATSILSs’ resources between criminal, family and civil law matters lays at the heart of equitable access to legal services by Indigenous Australians, particularly the access of women and children and people living in regional and remote areas. |
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Aboriginal and Torres Strait Islander Legal Services and Criminal Law Matters |
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2.2 | The number of criminal cases dealt with by ATSILSs rose by about 67 percent over the five years – from 68 066 cases in 1997-98 to 113 698 cases in 2002-03.1 However, ANAO found that ‘funding … for the Legal Aid element [of the Law and Justice Program] has not increased substantially over the last five years.’2 |
2.3 | In 2001-02 of the legal aid cases dealt with by ATSILSs, 89 percent were criminal and two percent were family law matters.3 By 2003-04 the proportion of criminal cases dealt with by ATSILSs had risen to 93 percent and the proportion of family law matters had dropped to one percent.4 |
2.4 | ATSILSs expressed a strong view that their primary function is to represent persons in danger of incarceration. This view was supported on a number of grounds. |
2.5 | The preponderance of criminal law matters dealt with by ATSILSs was explained in terms of:
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2.6 | The largest ATSILS in New South Wales, the Sydney Regional Aboriginal Corporation Legal Service (SRACLS), supported the view that the primary focus of ATSILSs should be on criminal law by citing the current disproportionate incarceration rates of Indigenous people in relation to the rest of the population:
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2.7 | The Western Aboriginal Legal Service (WALS), which services the western area of New South Wales, put the 20 percent figure into context as reflecting an increase in the proportion of Indigenous people represented in the prison population:
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2.8 | WALS explained the reasons for the increase in New South Wales involved:
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2.9 | The historical reasons for ATSILSs and the continued and increasing over-representation of Indigenous people in the criminal justice system has resulted in:
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2.10 | ATSILSs’ view of their primary function is reflected in the Commonwealth’s Priority Assistance Categories of the Policy Framework for Targeting Assistance Provided by Aboriginal and Torres Strait Islander Legal Services. 10 The Priority Assistance Categories set out criteria for determining priority cases in which ATSILSs should act. The first Priority Assistance Category specifies that providers must give priority to applicants ‘where the person may be detained in custody’.11 |
2.11 | The conviction with which ATSILSs (and other providers of legal services to Indigenous people) hold their primary responsibility as the provision of criminal law services was evident in the dissatisfaction expressed on the proposed alteration of the Priority Assistance Categories in the Exposure Draft of the Request for Tender of Indigenous Legal Services.12 The Exposure Draft placed ‘cases in which personal safety and the safety of a child was at risk’ above cases in which ‘persons were at risk of detention’.13 |
2.12 | The requests for tenders to provide Indigenous legal aid services in Victoria and Western Australia and Queensland reiterated the original ordering of Priority Assistance Categories listing the first Priority Assistance Category as ‘where the person may be detained in custody’14 |
2.13 | Despite the alterations to the order of Priority Assistance Categories, AGD stated that there were no implications of a hierarchy:
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Costs of Increased Incarceration |
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2.14 | The Legal Aid Commission of Western Australia (WALAC) summed up the prevailing mood among all providers of legal aid services to Indigenous Australians in criminal matters stating that:
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2.15 | Two types of costs accompany increased incarceration rates in the criminal justice system. |
2.16 | The first is the cost to the criminal justice system itself. The fact that the full details of defendants’ cases are not before the courts when verdicts and sentences are passed down, undermines the criminal law process. |
2.17 | The second was detailed by the Legal Aid Commission of New South Wales (NSWLAC) as the financial costs of incarceration:
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Aboriginal and Torres Strait Islander Legal Services and Family and Civil Law Matters |
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2.18 | The preponderance of criminal law matters dealt with by ATSILSs raises questions of access by Indigenous Australians to legal services in family and civil law matters. People seeking access to family and civil law services are often victims or potential victims of family violence. |
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Impediments to Provision of Family and Civil Law Services by Aboriginal and Torres Strait Islander Legal Services |
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2.19 | In declaring their primary function as the representation of clients in criminal law matters, ATSILSs also acknowledged the importance of family and civil law services to Indigenous Australians. However, they referred to a range of funding and administrative impediments to establishing and expanding practices and servicing clients in these areas of the law. |
2.20 | The cost of establishing a civil law practice within the ATSILS funding regime was considered prohibitive. SRACLS, stated:
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2.21 | Civil and family law practices were seen as lying even further outside the capabilities of smaller regional ATSILSs. The South Eastern Aboriginal Legal Service (SEALS), which services the south eastern region of New South Wales stated:
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2.22 | The ability of ATSILSs to develop and retain expert staff is considered at Chapter Four. |
2.23 | SEALS affirmed the importance of having available family and civil law services, not only in their own terms but in diffusing and diminishing instances in which an event may conclude with a criminal act:
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2.24 | Even were an ATSILS able to establish a civil or family law practice, the lack of acknowledgement from funding bodies of the greater costs involved in undertaking family and civil law cases discouraged involvement in these areas of law. SRACLS stated:
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2.25 | AGD clarified the claims that ATSILSs received the same amount per case regardless of the type of case undertaken:
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2.26 | The far greater resources required to conduct civil and family law cases was supported by the National Association of Community Legal Centres (NACLC). NACLC:
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2.27 | The Aboriginal Legal Rights Movement (ALRM), the sole ATSILS in South Australia, also supported claims that the model used to fund ATSILSs militated against them conducting family and civil law cases:
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2.28 | The inadequacy of family and civil law services to Indigenous Australians is exacerbated by the fact that a significant proportion of the Indigenous population live in regional and remote Australia. Even mainstream providers of legal services such as the NSWLAC found:
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2.29 | WALS confirmed the difficulties of obtaining family law services for clients by referral in rural, regional and remote areas:
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2.30 | The serious consequences of the paucity of family law services in regional areas was exemplified in:
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2.31 | A final major reason for the ATSILSs not taking on family law matters involved conflict issues. Conflict issues are discussed in detail at Chapter Three. |
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Family and Civil Law Services Provided by Aboriginal and Torres Strait Islander Legal Services |
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2.32 | Larger ATSILSs, particularly those with state wide coverage and or operating out of a capital city, tended to offer some level of service in family and civil law matters. The Alice Springs based Central Australian Aboriginal Legal Aid Service (CAALAS) also provides family and civil law services.28 |
2.33 | ALRM advised that responding to changing community needs had resulted in:
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2.34 | CAALAS stated that of nine lawyers, two are full-time civil lawyers and one a full-time family lawyer.30 |
2.35 | The former Director, Legal Services of the Aboriginal Legal Service of Western Australia (ALSWA), Mr Mark Cuomo, stated ALSWA:
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2.36 | SRACLS stated that it had introduced a family law service as the result of successfully lobbying ATSIC for additional resources:
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2.37 | Some ATSILSs sought to offset a lack of funding for resource intensive family and civil law matters by entering into agreements with LACs.33 The Commonwealth provides funds to LACs to act in matters of Commonwealth law, which are primarily family law matters. |
2.38 | The coordination of services between ATSILS and LACs is discussed in detail at Chapter Five. |
2.39 | Another strategy to provide family law services was the use of pro bono solicitors. SRACLS stated that:
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Committee Comment and Recommendation |
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2.40 | ATSILSs operate in a climate of effectively static funding and increasing demand. ATSILSs prioritisation of cases where a person is in danger of incarceration is understandable because these needs are immediate. To withhold representation of accused persons in danger of incarceration, Indigenous or otherwise, would constitute a fundamental breach of the principles of our criminal justice system. |
2.41 | However, the accessibility of family and civil law services to Indigenous people is important in two respects:
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2.42 | The arrangements under which ATSILSs receive funding present significant impediments to them introducing or increasing family and civil law services. |
2.43 | AGD needs to resolve the precise character of the legal services it requires to be provided by ATSILSs. |
2.44 | If AGD considers that it is desirable that ATSILSs provide family and civil law services, it needs to put in place funding arrangements that acknowledge the costs of establishing civil law practices and the greater amount of time and resources required of a legal service to conduct family and civil law matters. |
2.45 | Funding for family and civil law practices would have to be on a far more extended cycle than has been the case to date and the block funding across criminal, family and civil law matters must be acknowledged to be manifestly inadequate and inappropriate in encouraging provision of adequate family and civil law services. |
2.46 | The Committee considers that, in the event that AGD considers that ATSILSs should provide family and civil law services, the level of expected services in these areas of the law needs to be specified and funds for the provision of services needs to be dedicated specifically to the provision of these services. |
2.47 |
Recommendation 2That based on available data and need, all future contracts between the Attorney-General’s Department and providers of services that are currently delivered by Aboriginal and Torres Strait Islander Legal Services designate specific requirements of family, civil and criminal case loadings and provide adequate funding to meet these requirements. |
2.48 | Furthermore, the Committee notes that the incapacity and discouragement to provide family and civil law services in current funding arrangements impacted in a particularly acute way upon smaller regional ATSILSs. The Committee understands that this incapacity supports the Government’s stated preference of minimising the number of providers in the tendering out of ATSILSs. |
2.49 | If AGD considers that family and civil law services should be provided to Indigenous Australians by organisations other than ATSILSs, the evidence shows overwhelmingly that the designated providers should be Indigenous owned and that designated providers should be required to maintain a network of Community Legal Workers. |
1 | ANAO, ATSISLaw and Justice Program,Audit Report No. 13, 2003-2004, Para . 1.9, p. 26. Back |
2 | ANAO, ATSISLaw and Justice Program,Audit Report No. 13, 2003-2004, Para . 1.7, p. 25. Back |
3 | ATSIC, Annual Report 2001-2002, p. 148. Back |
4 | ATSIC, Annual Report 2003-2004, p. 125. Back |
5 | MRALS, Transcript, 13 July 2004 , p. 46 Back |
6 | SRACLS, Transcript, 13 July 2004 , p. 73. Back |
7 | WALS, Transcript, 30 March 2005 , p. 2. Back |
8 | WALS, Transcript, 30 March 2005 , p. 7. Back |
9 | MRALS, Transcript, 13 July 2004 , p. 53. Back |
10 | ATSIS, Exhibit No. 18. Back |
11 | ATSIS, Exhibit No. 18, Sect. 4.1. Back |
12 | ATSIS, Exhibit No. 15. Instances of ATSILS’ concerns at the re-arrangement of Priority Assistance Categories can be found at SEALS, Exhibit No. 4, pp. 14-5, VALS , Exhibit No. 11, p. 8. Back |
13 | ATSIS, Exhibit No. 15, pp. 62-3. Back |
14 | AGD, Request for Tender No. 04/29 for the Purchase of Legal Aid Services to Indigenous Australians in Victoria and Western Australia, p. 65 and AGD, Request for Tender No. 04/01 for the Purchase of Legal Aid Services to Indigenous Australians in Queensland, p. 67. Back |
15 | AGD, Submission No. 44, p. 17. Back |
16 | WALAC, Transcript, 31 March 2005 , p. 19. Back |
17 | NSWLAC, Submission No. 25, p. 26. Back |
18 | SRACLS, Transcript, 13 July 2004 , p. 63. Back |
19 | SEALS, Transcript, 9 June 2004 , p. 36. Back |
20 | SEALS, Transcript, 9 June 2004 , p. 36. Back |
21 | SRACLS, Transcript, 13 July 2004 , p. 63. Back |
22 | AGD, Submission No. 44, p. 3. Back |
23 | NACLC, Transcript, 13 July 2004 , p. 5. Back |
24 | ALRM, Transcript, 19 August 2004 , p. 29. Back |
25 | NSWLAC, Transcript, 13 July 2004 , p. 80. Back |
26 | WALS, Transcript, 30 March 2005 , p. 5. Back |
27 | Grace Cottage , Transcript, 30 March 2005 , p. 53. Back |
28 | CAALAS, Transcript 22 July 2004 , p. 39. Back |
29 | ALRM, Transcript, 19 August 2004 , p. 34. Back |
30 | CAALAS, Transcript, 22 July 2004 , pp. 39-40. Back |
31 | Mark Cuomo , Transcript, 31 March 2005 , p. 1-2. Back |
32 | SRACLS, Transcript, 13 July 2004 , p. 60. Back |
33 | WALS, Submission No. 2, p. 5. Back |
34 | SRACLS, Transcript, 13 July 2004 , p. 67. Back |
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