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Vanstone is dismantling the right to a fair trial for Aboriginal people

By Gwynn Mac Carrick

20 May 2004 - For an increasing number of Australians, legal aid is a precondition to their ability to use the justice system. This is a fact compounded for Aboriginal Australians by the recent decision of the federal government to outsource Aboriginal Legal Aid for competitive tender. Having worked as a criminal lawyer for both Australian Legal Aid and Aboriginal Legal Aid, I feel the need to comment on the planned tender and the encroachment that it entails upon Indigenous rights in this country.

Tendering processes have a lowest-common-denominator objective. Invariably this asks "who can do the job the cheapest". Thus, tendering services, under usual circumstances, is a method of maximising efficiency. There are, however, circumstances in which the desire to be efficient is superseded by a competing objective – the desire to create a social or public "good". Aboriginal Legal Services are a case in point.

Aboriginal Legal Aid Services (ALSs) were originally set up to address inequity and cultural disadvantage, premised upon the presumption that indigent Indigenous clients get the best representation from a service that is committed to the principles of access to justice and equality before the law. Opening up legal welfare services to the process of private competitive tender, and thereby awarding efficiency over principal, is counter-productive to the organisational objective to do "good".

It is no secret that in the private sector you get what you pay for. In private practice, a legal-aid file, no matter what work is done on it, will only ever earn lawyers a flat fee. Practitioners then, will only ever do that which is required and no more, preferring to concentrate on the clients they can bill by the billable unit. It is only natural, after all.

It follows therefore, that the effect of sourcing legal aid to the private sector is a return to unequal access to justice. That is to say, the very rationale behind the setting up of legal-aid services is defeated by the private sector’s profit motive.

The legal-aid file sits at the bottom of the pile as an afterthought.

This is why it is imperative to maintain strong legal-aid organisations with in-house salaried lawyers. Legal organisations that provide a community service are always going to lose the debate about efficiency, because "going that extra mile" for the client is not cost effective. It does however, address a power imbalance caused by disparate wealth.

The advantage of the community sector is that while they have had to account for every dollar in recent time, and have had to withstand massive budget cuts requiring them to do more with less, they have not forgotten their foundational philosophical underpinnings. Arguably, a salaried lawyer is better placed to take up ideological battles and pursue Indigenous law reform issues through the legal system.

Aboriginal Legal Services also serve a cultural function, which cannot be fulfilled by private contractors. ALSs act as a central agent or "first port of call" for referral to a body of cultural, social, economic and welfare oriented Indigenous networks. In very real terms Aboriginal Legal Services demystify bureaucracy and empower individuals by providing general advice as to rights, options, and where clients might seek assistance for non-legal issues.

But this relationship is tentative, based on trust, and dependent upon Indigenising the service to the extent that there exists a degree of credibility within the local Aboriginal community – ideally Aborigines supporting Aborigines or at the very least deemed to have adopted an Aboriginal ethic.

As a lawyer for Aboriginal Australians in the courts of remote New South Wales, I worked alongside a cultural officer at all times. This officer was recruited on the basis of his standing within the Aboriginal community as a respected elder. In the presence of an elder, I had a greater chance of eliciting comprehensive instructions in the police cell. My advise also carried weight because it was issued in the presence of a significant person. I too, was made more aware of the sensitivities and relevant cultural issues that I might otherwise have been oblivious to.

Under the terms of the current government’s bidding process, the successful tenderers will not be required to employ Indigenous staff or be an Indigenous organisation.

The degree to which the tender process will impact upon Indigenous justice, already in crisis, cannot be overstated. Travelling to various courts spotted throughout rural New South Wales, I personally became aware of the epidemic of Aboriginal over-representation in our prison system, observing that Aboriginal Legal Aid lawyers on any given day, in any given rural courthouse, represent near two thirds of the court list.

While the Royal Commission into Aboriginal Deaths in Custody seems now a lifetime ago, it must be remembered for having made several policy recommendations to tackle the problem of Aboriginal over-representation, and death, in our prison system. Without doubt, Aboriginal Legal Services, committed to community life and culture, are integral to a more just Australia outlined in the Commission’s recommendations and extensively articulated in Australia’s international treaty obligations.

Foremost among treaties for which Australia is a signatory, is the <http://>Universal Declaration on Human Rights, which includes provisions relating to the inalienable right to a fair hearing, and the basic right of every individual to access the justice system. One would have assumed that these rights had translated into our political culture and become enshrined in our constitutional heritage – not so. It would appear that it is no longer a tennet of political life that the weak are protected from the insults of the strong. It seems now we can not rely upon equal protection before the law, or upon safety nets for the disadvantaged.

On 19 April, Minister Vanstone further aggravated the government's position by flagging a tightening of aid eligibility by cutting grants of Aboriginal aid for serious repeat offenders. While political minders have since distanced the Minister from her comments, stating that there will be no prohibition on legal aid available to Aboriginal applicants with prior convictions, we now know where she is travelling with the tender process.

We also know that successful tenderers will be required to shift priority from criminal cases, which presently make up an overwhelming majority of Aboriginal Legal Services cases, to child welfare and family violence matters. This, in real terms, will achieve the Minister's objective (reducing aid to serious criminal matters) through the back door. Tenderers are now on notice that the government does not favour directing funds to repeat offender/serious criminal cases - and should structure their bids accordingly.

Let's not kid ourselves, the government has opened a cut-throat competitive bidding war for a $122 million, two-year contract and justice for Aboriginal defendants will be the loser.

The Principal Lawyer for the Central Australian Aboriginal Legal Aid Service, David Bamber said that “[t]he introduction of means testing and reduction of the number of types of matters for which aid is granted [mean that] services such as our after-hours services, a lot of our field services and services to the bush, would surely be cut.”

The Howard government is displaying a reckless abandonment of the right to a fair trial in this country. It has always been the case that an applicant, facing the prospect of imprisonment would be guaranteed legal representation. It now seems Indigenous Australia is to be cut adrift.

This, of course, translates to serious inroads into the once-robust notion of a "fair trial" as the uninitiated Aboriginal defendant attempts to muddle their way through the maze that is the modern criminal legal system. The result is irreparable damage to justice in Australia generally, for it has always been the case that "access to the law is the alternative to the jungle".

If Australia ever finds a path to reconciliation, it will be because of the nobility of spirit and the generosity of Aboriginal people to move beyond both historic and contemporary wrongs. Far from moving towards reconciliation, our present political culture is taking active steps to establish an apartheid system of justice, where some are more equal than others.

In the final analysis, the Reconciliation marches across Australia mean very little viewed objectively – just token symbolism in a country where concepts such as "equality before the law" and the "right to a fair trial" are fast becoming forgotten virtues of an Anglo-Saxon legal tradition.

Gwynn MacCarrick is a Human Rights lawyer based in Hobart. She has appeared as Defence counsel before the UN Special Panel for Serious Crimes in East Timor, has worked with the Office of the Prosecutor at the UN Criminal Tribunal for the Former Yugoslavia, and in between her domestic criminal practice has taken up various postings with the UN High Commission for Refugees. Gwynn is undertaking a doctorate in international criminal law at the University of Tasmania Law School.

Source: Online Opinion

Indigenous legal service tender lacks support

Reporter: Emma Alberici

25 May 2004 - KERRY O'BRIEN: It's National Reconciliation Day tomorrow.

But given the uncertainty of what lies ahead for Aboriginal affairs after the Government's decision to wind up the main representative Aboriginal body, ATSIC, there's probably not a lot to celebrate.

And there's another long-standing Aboriginal institution whose future is in doubt.

The Aboriginal and Torres Strait Islander Legal Service was set up 30 years ago to provide legal aid to Australia's Indigenous community, which continues to be vastly over represented in the criminal justice system.

More than a score of recommendations from the Aboriginal Deaths in Custody Royal Commission specifically referred to the role of the specialist legal service.

The Federal Government says Aboriginal people are not getting value for money and has proposed putting the work out to open tender.

The draft proposals have sparked strong opposition throughout the legal fraternity.

In fact, we were unable to find anyone prepared to support it for this story - even the Minister, Senator Vanstone, declined to be interviewed.

Emma Alberici reports.

EMMA ALBERICI: Twenty-three-year-old Chad Saunders is quarter Lebanese, quarter Norwegian and half Aboriginal, but while he may look caucasian, he identifies more with his Indigenous kin.

TREVOR CHRISTIAN, SYDNEY REGIONAL ABORIGINAL LEGAL SERVICE: I'm going to put this to the magistrate and I'm going to ask that you have a second opportunity to do the traffic offenders program.

EMMA ALBERICI: Today in the Redfern Local Court, Chad Saunders is facing sentencing following a conviction in December last year for driving while disqualified.

He's being represented by the Aboriginal Legal Service.

CHAD SAUNDERS: If they weren't around, I'd represent myself because I just don't trust anyone else.

EMMA ALBERICI: Over the past five years he's used the service eight times and on at least three occasions the crimes he was charged with were similar in nature - trespass in 1999, malicious damage to property in 2000, then robbery in 2001.

Do you see how people watching this might say, "Why should we keep giving you free representation when you keep coming back and committing more crimes?"

CHAD SAUNDERS: I can see how they'd say that but, see, they're more likely people asking that are people who've got a lot of money.

They don't have a worry in the world.

When you get down to our level where we have all the worries, we've got no money and we're just battling to stay alive, what do you do?

EMMA ALBERICI: Under new proposals drafted by the Federal Government's Department of Aboriginal Affairs, Chad Saunders would have stopped qualifying for free representation some time ago.

The exposure draft purchasing arrangements document for legal aid services for Indigenous Australians states that: "Where a provider has previously represented an applicant charged with a criminal offence involving violence, assault or the breach of a restraining order and the circumstances of the two cases are the same or similar, the provider may refuse to represent the applicant."

TREVOR CHRISTIAN: That's terrible, that's terrible.

The Legal Aid can do people two or three times but the Aboriginal Legal Service is not allowed to do it any more than once.

Well, I believe that's discrimination.

EMMA ALBERICI: Trevor Christian is the general manager of Sydney Regional Aboriginal Legal Service.

At present, 83 per cent of its male clients and 73 per cent of its female clients have previous criminal convictions.

The Government's new tender guidelines have listed criminal matters as a third priority behind child welfare and considerations of personal safety, despite the fact that the greatest pressure for services is currently in the criminal law area.

Senator Vanstone says her motivation is to provide better value for money for the Aboriginal community.

TREVOR CHRISTIAN: I don't know how she can get better value for the money that they're paying now, because we're under-resourced as it is now.

The Legal Aid Commission, I think, work on about $300 a head and we work on about $65 a head.

NICHOLAS COWDERY, NSW DIRECTOR OF PUBLIC PROSECUTIONS: There's that old folksy saying, "If it ain't broke, don't fix it."

And I think that applies very much to the position of the ATSILS now.

EMMA ALBERICI: Nicholas Cowdrey has been the Director of Public Prosecutions in NSW for close to 10 years.

His office prosecutes more Aboriginal people each year than any other in the country, so it follows that it's in regular contact with the Aboriginal and Torres Strait Islander Legal Services - ATSILS as they're otherwise known.

NICHOLAS COWDERY: Recently we had a meeting here in Sydney of all the Australian directors of public prosecutions and this issue actually arose during the course of the meeting.

None of them has been consulted and I know that none of the legal aid commissions have been consulted and I'm told that none of the governments, and I know that is certainly the case with the New South Wales Government, none of the state or territory governments has been consulted on this proposal, so that rather raises the question: "Where has the Commonwealth obtained any of the information about this matter such as to propose such a wide-ranging change?"

EMMA ALBERICI: For the first time in 30 years, the Government is opening the service to non-Aboriginal organisations.

Under its new criteria, there is no requirement for the winning tenderer to employ indigenous people or have any experience in dealing with them.

The service provider also has the discretion to refuse to represent Indigenous people charged with minor offences.

SENATOR AMANDA VANSTONE, INDIGENOUS AFFAIRS MINISTER: No more money because you're an Aboriginal legal service.

Now you get money if you can show that you will in fact deliver services to Indigenous Australians.

EMMA ALBERICI: Indigenous Affairs Minister Amanda Vanstone refused to speak to the 7.30 Report but in a recent address to the Parliament she appeared to link her concerns about the Aboriginal legal services to problems in Queensland, where former ATSIC commissioner Ray Robinson has been charged with three counts of fraud.

AMANDA VANSTONE: Four hundred cash cheques to a total over $1 million.

Of those cheque, 81 were for $5,000 or more to a total of $785,000.

Several of these cash cheques are listed simply as for meeting expenses without adequate detail.

SHARON PAYNE, NORTHERN AUSTRALIAN ABORIGINAL LEGAL AID SERVICE: It seems the approach now is to use a sledgehammer to kill one fly type of thing, so the whole lot of us are being tainted and targeted because of one person.

I think we call that racism.

Sharon Payne runs the Northern Australian Aboriginal Legal Aid Service in Darwin, where funding has remained static for seven years despite a 36 per cent jump in the case load.

The Northern Territory population is 30 per cent Aboriginal and Sharon Payne is convinced that the Commonwealth's new draft tender is a thinly veiled attempt to privatise the service.

SHARON PAYNE: We've also heard that some of the private law firms, rather cynically, are saying that they can use it to gain profit because they will be able to cherry pick, that is, they'll be able to just pick out the best cases.

So we're estimating probably 90 per cent of our caseload at the moment would not be catered for if a private firm won this tender.

EMMA ALBERICI: Is that something you would support in principle, putting this out to private tender?

NICHOLAS COWDERY: I can't see any benefit at all to be achieved by this tender process.

I've seen some of the documents associated with the exposure draft tender, which is presently out for consultation.

I think it's a severely flawed document.

I think some of the requirements in it are meaningless and unnecessary.

EMMA ALBERICI: The Government has received 46 submissions in response to the exposure draft.

In its offering, the Law Council, Australia's peak legal body, says it: "Does not for total dismantling of the current arrangements and the institution of any new scheme unless there are strong reasons for so doing.

"To the present time, those reasons are not apparent."

EMMA ALBERICI: The Aboriginal Legal Service has convinced the Redfern Local Court Magistrate to give Chad Saunders a second chance to do the traffic offenders program, which keeps him out of jail, for now at least.

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