Inquiry into Access to Justice (2009)

Inquiry into Access to Justice

Australian Human Rights Commission Submission to the Senate Legal and Constitutional Affairs Committee

20 October 2009


Table of Contents

1 Introduction

2 Summary

3 Recommendations

4 Access to justice for Indigenous Australians

4.1 Over representation of Indigenous people in the criminal justice system and complex legal needs

4.2 Aboriginal and Torres Strait Islander Legal Services

4.3 Legal services for Indigenous women

4.4 Justice reinvestment



1 Introduction

  1. The Australian Human Rights Commission (the Commission) makes this submission to the Senate Legal and Constitutional Affairs Committee in its Inquiry into Access to Justice.

  2. This submission will consider the ability of Indigenous people to access justice based on the work of the Aboriginal and Torres Strait Islander Social Justice Commissioner.

  3. Access to justice is an issue for all Australians but resource constraints mean that the Commission's submission is limited to access to justice for Aboriginal and Torres Strait Islander peoples only.

2 Summary

  1. Indigenous people are over represented in all aspects of the criminal justice system, both as victims and offenders. Indigenous people have complex legal needs, arising from issues around language, cross cultural barriers and social disadvantage.

  2. Despite the large number of Indigenous people involved in the criminal justice system and their complex needs, they face inadequately resourced legal services. Research has shown that there is a significant lack of parity between the funding for Aboriginal and Torres Strait Islander Legal Services (ATSILS) and Legal Aid Commissions which can result in poorer access to justice.

  3. Indigenous women face barriers in accessing legal services. Because the work of ATSILS is predominantly criminal law focussed, the greater part of available legal services is directed to Indigenous men. Proportionally, men constitute a larger majority of the Indigenous population charged with criminal offences.

  4. The recent expansion of Family Violence Prevention Legal Services to 31 Units across Australia increases options for Indigenous women. However, the majority of Units are concentrated in regional and remote locations, leaving a gap in services for urban Indigenous women.

  5. In light of the approach taken by Australian Government’s recent Strategic Framework for Access to Justice in the Federal Civil Justice System, this submission adopts a ‘system wide approach’[1] that sees access to justice as a ‘key means of promoting social inclusion’.[2] To do this, we put forward ‘justice reinvestment’ as a broad justice reform aimed at increasing Indigenous access to justice, as well as improving social services for disadvantaged Indigenous communities. The concept of justice reinvestment is outlined in Part 4.4 of this submission.

3 Recommendations

  1. The Australian Human Rights Commission recommends that:
    1. the level of funding to ATSILS be increased to achieve parity with Legal Aid Commissions and to reflect the complexity of the work they undertake

    2. a comprehensive audit of legal services for Indigenous women be undertaken. The audit must include (a) information about the areas where legal services exist for women; (b) information about areas where there are no services, or limited services for women; (c) profiles of the geographic locations from which Indigenous women are being incarcerated and the types of crimes; (d) recommendations for the better provision of legal services for women and an increase in crime prevention services available for whole communities.

    3. the Australian government, in cooperation with the states and territories, develop a strategy for implementing ‘justice reinvestment’, including the selection of initial pilot program locations.

4 Access to justice for Indigenous Australians

4.1 Over representation of Indigenous people in the criminal justice system and complex legal needs

  1. Indigenous people are over represented as both offenders and victims in the criminal justice system and present with a range of complex legal needs which impact upon their ability to access justice.

  2. Research has consistently shown alarming rates of over representation in the criminal justice system:

    • In research conducted on the 2008 prisoner population, it was found that nationally, Indigenous adults are 13 times more likely to be imprisoned than non-Indigenous adults.[3]

    • The Overcoming Indigenous Disadvantage 2009 report found that Indigenous juveniles are 28 times more likely to be placed in juvenile detention than their non-Indigenous counterparts.[4]

    • The Indigenous imprisonment rate has increased by 46% for Indigenous women and by 27% for Indigenous men between 2000 and 2008.[5]

    • In 2002, research found that Indigenous people comprised 26% of all police custodies in Australia, making them 17 times more likely to be held in police detention than non-Indigenous people.[6]

    • In the 2002 National Aboriginal and Torres Strait Islander Social Survey (NATSISS) nearly one in four Indigenous persons reported being the victim of actual or threatened violence in the previous 12 months.[7] This was double the rate reported in the 1994 NATSISS.

    • Victorian research has demonstrated that Indigenous women in that State are four times more likely to be victims of indictable assaults, three times more likely to be victims of summary assaults and twice as likely to be victims of sexual assault as non-Indigenous women in Victoria.[8]

    • The rate of substantiated notifications for child abuse and neglect for Indigenous children has been increasing between 1999 to 2008. Indigenous children are six times more likely to have a notification for child abuse or neglect which is found to be substantiated and seven times more likely to be subject to a Care and Protection Order than non-Indigenous children.[9]

  3. These statistics indicate that Indigenous people have a high need for legal services. The 2002 NATSISS showed that 20% of Indigenous people reported using legal services in the past 12 months for either criminal, civil or family matters.[10]

  4. As well as the sheer volume of Indigenous people involved with the legal system there are a number of compounding factors that make their legal needs more complex.

  5. Language issues impact on access to justice with English not being the first language in some Indigenous communities. For instance, the Western Australian Department of Justice found that 14% of Indigenous women prisoners spoke an Indigenous language as their first language.[11] The nuances of Aboriginal English can also lead to misunderstanding between clients and their lawyers.

  6. Cross cultural issues also play a role in access to justice. While some of these issues are being addressed through the use of specialist Indigenous courts,[12] the majority of Indigenous people still appear before mainstream courts that may at times struggle to bridge the cultural divide.[13]

  7. Broader issues of disadvantage and social exclusion also increase the complexity of Indigenous legal needs. In particular, lower levels of educational attainment,[14] as well as high levels of hearing loss,[15] disability[16] and mental health problems,[17] can all impede understanding of legal processes and require appropriate adaptations.

4.2 Aboriginal and Torres Strait Islander Legal Services

  1. Given the number of Indigenous people involved with the legal system and the complexity of their needs, it is vital that Aboriginal and Torres Strait Islander Legal Services (ATSILS) are adequately resourced and accessible to all Indigenous people.

  2. ATSILS developed in the 1970s and have been seen as a cornerstone in the struggle for Indigenous rights. However, their value is far from just symbolic. ATSILS have unique cultural competence and expertise, especially through the use of Indigenous Field Officers. This improves equitable access to justice that, according to Cunneen and Schwartz:

    goes to the heart of questions of access, equity and the rule of law. It represents the ability of Indigenous people to use the legal system (both criminal and civil) to the level enjoyed by other Australians.[18]

  3. Presently, ATSILS are underfunded for the work they do. Funding has not kept pace with the growth in criminal cases before the courts. The number of criminal cases dealt with by the ATSILS between 1998 to 2003 increased by 67%, however, funding did not increase substantially during this period.[19]

  4. The research by Cunneen and Schwartz has highlighted the significant disparity in funding between ATSILS and Legal Aid Commissions, the latter providing a mainstream service. Comparing the Northern Territory Legal Aid Commission (NTLAC) and the North Australian Aboriginal Justice Agency (NAAJA), they found that the NTLAC had a 59% greater budget than NAAJA, despite NAAJA undertaking three times as many criminal matters, as well as a greater total number of criminal, civil and family law matters combined.[20]

  5. To meet this huge work load, ATSILS lawyers have larger caseloads and have substantially less resources for each case. According to Cunneen and Schwartz:

    A further indication of this disparity in resources is the money spent on client costs (ie medical certificates and associated costs, psychological assessments, court fees, etc) in criminal matters. NTLAC expended $871,357 compared to NAALAS’ $60,000 – and this amount was spent on one third the number of criminal cases run by the NTLAC. As an average, court costs for criminal matters by the NTLAC were $762 per matter, compared to $17 per matter by NAAJA.[21]

  6. Other ATSILS have dealt with the funding short falls by limiting services. The Aboriginal Legal Service (NSW/ACT) no longer offers a civil law services due to funding constraints. The service closed down its family law practice at the end of June 2008 as a result of there being no increase in its Commonwealth funding arrangements.[22]

4.3 Legal services for Indigenous women

  1. Indigenous women as victims of family violence face even greater barriers to legal representation. In most cases it will be the offender, rather than the victim who is eligible for legal aid through ATSILS. This is because when a criminal charge is laid, the offender will come to the attention of the ATSILS quickly and become a client of the service. The ATSILS are then unable to offer assistance to the victim.

  2. The introduction of Family Violence Legal Prevention Services (FVPLS) was designed to provide assistance to women who were unable to access services from ATSILS. However FVPLS predominantly service regional and remote locations and their service coverage is not comprehensive. Some remote regions are without any service, and the majority of urban areas have no coverage. While FVPLS exist in Melbourne and Darwin, their service provision is concentrated on regional and remote geographic locations. This places some significant limits on Indigenous women’s access to legal services.

  3. In Western Australia and South Australia the ATSILS are the auspice bodies of some of the FVPLS. While there are protocols in place so that perpetrators and victims do not come into contact, this situation is far from ideal.[23]

  4. In 2008-09 the Commission provided training to some newly appointed Community Legal Education (CLE) workers from FVPLS. Their role is to undertake prevention education and training and community development activity in remote communities. However, funding for these positions has been limited to approximately 15 workers across Australia. This means that the majority of FVPLS have no preventative education component to their service. Violence prevention community development is an essential part of any Indigenous family violence prevention legal service.

  5. Consultation with FVPLS workers and evaluations of the Commission’s CLE training identified that violence prevention education and information services are best targeted at both men and women. Community campaigns, information sessions and community development activities should be focussed on whole communities and this can include perpetrators. Ideally, preventative education and information should be provided by CLEs off site.

  6. In 1994, the Australian Law Reform Commission report Equality Before the Law: Justice for Women recommended the establishment of separate legal services for Indigenous women.[24] Given the dramatic increase in incarceration rates for Indigenous women, there is now an urgent requirement for action. Profiling of patterns of incarceration and demand for services must be undertaken to ensure Indigenous women have access to justice.

4.4 Justice reinvestment

  1. Given that the over representation of Indigenous people in the criminal justice system , it makes sense that we consider ways of reducing Indigenous involvement in the criminal justice system in the first place. This also has implications for reducing the costs of delivering justice.

  2. The Commission proposes ‘justice reinvestment’ as a possible solution to the over representation of Indigenous people in the criminal justice system.

  3. Justice reinvestment will be discussed in the Commission’s forthcoming Social Justice Report. The Social Justice Report is tabled in Australian Parliament each year and is influential in setting the agenda for Indigenous affairs across the nation.

  4. The concept of justice reinvestment originated in the United States. It was initially developed by the Open Society Institute in 2003 but has since been taken up in 10 states in the US (Arizona, Oregon, Connecticut, Kansas, Michigan, Nevada, Pennsylvania, Rhode Island, Texas, Vermont and Wisconsin).[25]

  5. Justice reinvestment is a criminal justice policy approach that diverts a portion of the funds spent on imprisonment to the local communities where there is a high concentration of offenders. The money that would have been spent on imprisonment is reinvested in programs and services that address the underlying causes of crime in these communities. It is not just about tinkering around the edges of the justice system – it is about trying to prevent people from getting there in the first place.

  6. Justice reinvestment retains detention as a measure of last resort for dangerous and serious offenders, but actively shifts the culture away from imprisonment. Instead of imprisoning people it starts providing community wide services that will actually prevent offending.

  7. US Congress has recently held hearings on justice reinvestment. Justice reinvestment is also attracting a lot of attention in the United Kingdom, with Parliamentary inquiries and influential backers like Cherie Booth, making recommendations about its use in the United Kingdom.[26]

  8. The reason for the spread of justice reinvestment is its efficacy. For instance, in Kansas where justice reinvestment has been implemented, there has been a 7.5% reduction in their prison population; parole revocation is down by 48%; and the reconviction rate for parolees has dropped by 35%.[27]

  9. Justice reinvestment has as much in common with economics as social policy. It asks the question: is imprisonment good value for money? The simple answer is that it is not, given the high levels of recidivism and negligible impact on crime rates.

  10. In Australia we spent $9 billion on criminal justice in 2006-2007.[28] Of this approximately $570 million was spent on the administration of criminal courts[29] and $2.6 billion was spent on adult corrective services.[30]

  11. Indigenous adults make up roughly a quarter of all prisoners nationally. Very crudely, we can estimate that at least one quarter of the entire imprisonment expenditure ($650 million) would be spent imprisoning Indigenous adults each year. It could easily be more, given the higher costs associated with running prisons in remote areas and for women. In the Commission’s view, this money would be much better spent at seeking to prevent crime rather than in the imprisonment of individuals.

  12. Justice reinvestment is also based on evidence that a large number of offenders come from a relatively small number of disadvantaged communities.[31] The concentration of offenders logically suggests that there should also be commensurate concentration of services and programs to prevent offending in these communities.

  13. Demographic mapping in the US has identified ‘million dollar’ blocks where literally millions of dollars are being spent imprisoning people from certain neighbourhoods. For example, for one neighbourhood, The Hill in Connecticut, $20 million was spent in one year imprisoning just 387 people. The Hill is disproportionately made up of low income, African Americans.

  14. There is emerging evidence that we have our own communities with high concentrations of offenders and spending on detention and imprisonment. Thorough demographic mapping of offending hasn’t been done in Australia yet, but researchers such as Professor Tony Vinson have already identified the most disadvantaged post codes in Australia[32] - many of these have higher than average Indigenous populations.[33]

  15. Preliminary analysis of information supplied for the Social Justice Report by the state and territory departments responsible for corrections and juvenile justice identifies a number of communities with high concentrations of Indigenous incarceration. These communities are in urban and remote locations and include places like Blacktown, Dubbo, Port Augusta, Broome, Halls Creek, Darwin and Alice Springs. This data is very preliminary but it does suggest that there are Indigenous communities that could benefit from justice reinvestment strategies.

  16. Justice reinvestment also analyses legislative and policy factors which lead to imprisonment. For instance, in the United States many of the participating jurisdictions have amended parole, probation and bail laws in an attempt to reduce imprisonment.[34]

  17. Justice reinvestment would require cooperation between legislators, courts and corrections to target policies which have the effect of increasing imprisonment. For instance, in NSW one way of reducing juvenile detention would be to revoke the amendments the Bail Act which restricted the number of bail applications which can be made. Research by the NSW Bureau of Crime Statistics and Research concluded that these amendments to the Bail Act, in conjunction with police enforcement of bail laws, resulted in a 32% increase in the number of young people on remand between 2007 and 2008.[35] Similarly, there are concerns that new mandatory sentencing laws in Western Australia may also contribute to an increase in Indigenous imprisonment rates.

  18. Justice reinvestment has a very strong community focus. It recognises that incarcerating or otherwise detaining a large proportion of the population weakens the community, creating the conditions for further crime. This is what we are seeing in many of our Indigenous communities. We are seeing whole generations of men being removed from the community, large numbers of parents being separated from their children and young people taken away from their supports. All of this drains the community’s capacity to tackle crime and build safe communities.

  19. The community becomes the focus in justice reinvestment and is crucial in developing strategies and programs that will help prevent crime. Sometimes the money is spent on improving the provision of juvenile and community justice services, but ideally it is spent on early intervention and diversion services.

  20. In working with Indigenous communities, the importance of engaging the community and supporting Indigenous run programs cannot be overstated. Justice reinvestment is an opportunity to put some much needed funds back into the communities where Indigenous offenders are coming from.

  21. The idea of reinvestment in whole communities is quite a departure from current policy approaches which focus specifically on the individual. Most corrections programs provide individual and some group work, but little support for the broader community. While you dedicate funding to placing an offender in a well resourced, effective rehabilitation program, if they eventually return to a community with few opportunities, their chances of staying out of trouble are limited.

  22. This obviously has implications for victims as well as offenders, especially in the context of family violence. Many people who have worked in family violence prevention in Indigenous communities report that the women say ‘help us look after our men’.

  23. If all we do is remove people from communities where there is family violence – we can expect at some point they will return, and that the situation will be unchanged. The offender is likely to be still exhibiting the same behaviours and there is likely to be little support for the offender in his disadvantaged community. The impact of the violence within the family and the offender’s incarceration are likely to be intergenerational. Proactive efforts to work with communities and to provide support to communities on issues like healing, alcohol management and parenting may provide enormous benefits and avoid the costs in emotional and in financial terms.


[1]Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System: A guide for future action (2009), p 7. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_AStrategicFrameworkforAccesstoJusticeintheFederalCivilJusticeSystem (viewed 30 September 2009).
[2] Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System: A guide for future action (2009), p 1. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_AStrategicFrameworkforAccesstoJusticeintheFederalCivilJusticeSystem (viewed 30 September 2009).
[3] Australian Bureau of Statistics, Prisoners in Australia 2008, Catalogue No. 4715.0, p 6. At: http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/F618C51B775B2CF7CA25751B0014A2D5/$File/45170_2008.pdf (viewed 27 May 2009).
[4]SCRGSP (Steering Committee for the Review of Government Service Provision), Overcoming Indigenous Disadvantage: Key Indicators 2009, Productivity Commission (2009), p28. At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 12 October 2009).
[5] SCRGSP (Steering Committee for the Review of Government Service Provision), Overcoming Indigenous Disadvantage: Key Indicators 2009, Productivity Commission (2009), p28. At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 12 October 2009).
[6] N Taylor and M Bareja, 2002 National Police Custody Survey, Australian Institute of Criminology (2005) pp 22-3. At http://www.aic.gov.au/en/publications/current%20series/tbp/1-20/tbp013.aspx (accessed 12 October 2009).
[7] Australian Bureau of Statistics, 2002 National Aboriginal and Torres Strait Islander Social Survey, Catalogue No. 4714.0 (2004), p 4. At http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/AE3942DB21AD4A27CA256EBB0079843D/$File/47140_2002.pdf (accessed 12 October 2009).
[8] G Gardiner and T Takagaki, ‘Indigenous Women and the Police in Victoria: Patterns of Offending and Victimisation in the 1990s’ (2002) 13(3) Current Issues in Criminal Justice, p 319.
[9] Australian Institute of Health and Welfare, Child Protection in Australia 2007-2008 (2009),Catalogue No. CWS 33, pp viii-ix. At http://www.aihw.gov.au/publications/cws/cpa07-08/cpa07-08.pdf (viewed 2 October 2009).
[10] Australian Bureau of Statistics, 2002 National Aboriginal and Torres Strait Islander Social Survey, Catalogue No. 4714.0 (2004), p 4. At http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/AE3942DB21AD4A27CA256EBB0079843D/$File/47140_2002.pdf (accessed 12 October 2009).
[11] C Cunneen and M Schwartz, ‘Funding Aboriginal and Torres Strait Islander Legal Services: Issues of equity and access’ (2008) 32 Criminal Law Journal 38, p 41.
[12] Specialist Indigenous Courts involve the use of Elders and other respected persons in the court process. These court models are more informal and have special adaptations to ensure that they are culturally secure. Elders and other respected persons can advise the Magistrate about the best options for the offender but the final decision rest with the Magistrate. Some examples are the Koori Court in Victoria, Murri Court in Queensland and Circle Sentencing in NSW.

[13] See for example, Submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner on Common Difficulties Facing Aboriginal Witnesses at http://www.humanrights.gov.au/legal/submissions_court/amicus/giblet_aboriginalwitnesses20mar07.html
[14] SCRGSP (Steering Committee for the Review of Government Service Provision), Overcoming Indigenous Disadvantage: Key Indicators 2009, Productivity Commission (2009). At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 24 July 2009).
[15]ABS and AIHW, The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples 2008, ABS Release 4704.0 (2008), p 134. At http://www.aihw.gov.au/publications/ihw/hwaatsip08/hwaatsip08.pdf (viewed 12 October 2009).
[16] SCRGSP (Steering Committee for the Review of Government Service Provision), Overcoming Indigenous Disadvantage: Key Indicators 2009, Productivity Commission (2009), p 4.83. At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 24 July 2009).
[17] SCRGSP (Steering Committee for the Review of Government Service Provision), Overcoming Indigenous Disadvantage: Key Indicators 2009, Productivity Commission (2009), p 7.55. At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 24 July 2009).
[18]C Cunneen and M Schwartz, above, p 39.
[19] C Cunneen and M Schwartz, note 10, p 49.
[20] C Cunneen and M Schwartz, note 10, p 51.
[21] C Cunneen and M Schwartz, note 10, p 51.
[22] Public Interest Advocacy Centre, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Access to Justice (20 May 2009), p13. At http://www.piac.asn.au/publications/pubs/sub2009050_20090520.html (viewed 12 October 2009).
[23] Attorney-General's Department, Family Violence Prevention Legal Services Operational Framework, July 2009, At: http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~FVPLS+2009+Operational+Framework-16+July+2009.pdf/$file/FVPLS+2009+Operational+Framework-16+July+2009.pdf (viewed 13 October 2009)
[24] Australian Law Reform Commission (1994) Equality Before the Law: Justice for Women, Report no 69, [5.24]-[5.37].

[25] Justice Center, Justice Reinvestment: A project of the Council of State Governments Justice Center http://justicereinvestment.org/states (viewed 12 October 2009).
[26] See for example: Commission on English Prisons Today, Do Better Do Less: The report of the Commission on English Prisons Today (2009).http://www.howardleague.org/index.php?id=835 (viewed 23 July 2009).
[27] Roger Werholtz, Hearing on Justice Reinvestment, Commerce, Justice Science and Related Agencies Appropriations Subcommittee US House of Representatives (1 April 2009). At http://justicereinvestment.org/states/kansas/pubmaps-ks (viewed 6 October 2009).
[28] Australian Institute of Criminology, Australian Crime: Facts and Figures 2008, p 104. At http://www.aic.gov.au/documents/E/4/0/%7BE4031E6F-031D-415C-B544-8CE865A3CA0C%7Dfacts_and_figures_2008.pdf (viewed 6 October 2009).
[29] Australian Institute of Criminology, Australian Crime: Facts and Figures 2008, p 109. At http://www.aic.gov.au/documents/E/4/0/%7BE4031E6F-031D-415C-B544-8CE865A3CA0C%7Dfacts_and_figures_2008.pdf (viewed 6 October 2009).
[30] Australian Institute of Criminology, Australian Crime: Facts and Figures 2008, p 110. At http://www.aic.gov.au/documents/E/4/0/%7BE4031E6F-031D-415C-B544-8CE865A3CA0C%7Dfacts_and_figures_2008.pdf (viewed 6 October 2009).
[31] S Tucker and E Cadora, Ideas for an Open Society: Justice Reinvestment, Open Society Institute (2003), p 2. At http://www.soros.org/resources/articles_publications/publications/ideas_20040106/ideas_reinvestment.pdf (viewed 12 October 2009).
[32] T Vinson, Dropping off the edge: the distribution of disadvantage in Australia (2007). See also http://www.australiandisadvantage.org.au/.
[33] T Vinson, Dropping off the edge: the distribution of disadvantage in Australia (2007).
[34]http://www.justicereinvestment.org/strategy/provide
[35] S Vignarendra, S Moffatt, D Weatherburn and E Heller, Recent trends in legal proceedings for breach of bail, juvenile remand and crime, NSW Bureau of Crime Statistics and Research Crime and Justice Bulletin no.128 (2009). At http://www.bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB128.pdf/$file/CJB128.pdf (viewed 27 July 2009).