10.20 There are four discrete but complementary categories of legal services that provide targeted and culturally appropriate legal assistance to Aboriginal and Torres Strait Islander communities, including Legal Aid Commissions, community legal centres, ATSILs in each state and territory, and the Family Violence Prevention Legal Services (FVPLS). Commonwealth, state and territory governments provide the bulk of funding for the four legal assistance services. While the level and mix of funding sources varies between these different service providers, the past three years has seen much uncertainty around the funding of these services following the expiration of the original National Partnership Agreement on Legal Assistance Services—a 4 year agreement between the Commonwealth and the states and territories—and the re-negotiation of a new agreement for 2015–2020. The recent funding history of these legal services was articulated in the Law Enforcement and Justice Services Inquiry Report, and also comprehensively described in the Access to Justice Inquiry Report.
10.21 In the Discussion Paper, the ALRC asked ‘in what ways can availability and access to Aboriginal and Torres Strait Islander legal services be increased?’
10.22 Stakeholders overwhelmingly submitted that increasing access to justice fundamentally requires sufficient, sustainable and ongoing funding. In addition to the need for funding for their core work, many innovative service offerings that could increase access are also reliant on additional funding and support. As discussed above, the adequate resourcing of legal assistance services is a cornerstone of access to justice. The ALRC notes the Commonwealth Government’s commitment of an additional $55.7 million over the next three years for community legal centres and ATSILS. However, as noted by stakeholders, ongoing funding beyond 2020 remains uncertain. The ALRC encourages Commonwealth, state and territory governments to implement recommendations from the Access to Justice and Law Enforcement and Justice Services Inquiries relating to funding legal assistance services.
10.23 More broadly, stakeholders submitted that barriers to access to justice can be reduced by collaborations between non-Indigenous legal assistance providers and Aboriginal and Torres Strait Islander organisations. The importance of collaboration was linked to addressing some Aboriginal and Torres Strait Islander peoples’ reluctance to use mainstream services because of a history of racism and culturally insensitive service provision.
10.24 On the broader role of legal services in addressing disproportionate rates of Aboriginal and Torres Strait Islander incarceration, stakeholders noted that access to civil or family law assistance may help reduce rates of incarceration. The role of integrated, holistic wraparound services, and the value of co-locating legal services with other support services was also emphasised.
10.25 The Legal Education and Assistance Program (LEAP) run by the Women’s Legal Service, Wirringa Baiya Aboriginal Women’s Legal Centre and Western Sydney Community Legal Centre is an example of the role access to civil and family law services can play. LEAP provides culturally appropriate legal services to Aboriginal and Torres Strait Islander women in three metropolitan Sydney correctional services centres. Advice is provided across a range of areas, including civil and family law. Women’s Legal Services NSW stated:
Access to legal services in prison is essential to help reduce the risk of prisoners re-offending and being re-incarcerated. This is because imprisonment often exacerbates civil law and family law issues which are interconnected with the criminal law issues. This can prevent the successful reintegration of people after they are released…. As a statewide service WLS NSW often continues to act for clients after their release. Maintaining this relationship has resulted in women calling us for early legal advice about their safety, arrangements for their children and assistance to avoid parole breaches, for example, by varying reporting conditions. This is particularly important for Aboriginal and Torres Strait Islander women who may have family and community obligations requiring them to move between locations to assist with looking after children and family members.
10.26 National Aboriginal and Torres Strait Islander Legal Services (NATSILS) submitted that co-locating disability and legal services is an important avenue to improve access to justice. Aboriginal and Torres Strait Islander clients with a cognitive impairment or mental illness could be provided with a range of supports by disability support workers embedded within ATSILS including communication assistance, referrals, family assistance and emotional support. Disability support workers are also in a position to assist lawyers to recognise a client’s support needs, model good communication, and develop support packages that assist a client as they interact with police, prosecution services and the courts, ‘in order to reduce the risk of reoffending’.
10.27 Melbourne University ran a six month Disability Justice Program trial with NATSILS, Victorian Aboriginal Legal Service (VALS) and the Intellectual Disability Rights Service that embedded disability support workers within a community legal centre setting. While the trial has ended, NATSILS and VALS have tried to continue the co-location model but face resourcing constraints. Comments collected as part of the evaluation of the trial demonstrate the crucial role disability support workers can play. For example, in relation to a case where fitness to stand trial was raised with respect to an Aboriginal and Torres Strait Islander client, a lawyer told researchers:
We had a report prepared whereby some of the psychologists said he was in the lowest one per cent of intellect in the population. The question then is how do you ensure he doesn’t come back before the system? And there was a list of treatment options available and [the support person] was going to look at that and help the client engage with those options.
10.28 The end result was that rather than face possible indefinite detention following a finding of unfitness to stand trial, a diversionary order was made ‘which did not require that he enter a plea’.
10.29 The ALRC encourages Commonwealth, state and territory governments to support initiatives such as LEAP and the disability support worker program above.
Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 115–16.
Productivity Commission, Access to Justice Arrangements—Volume 2 (2014) chs 21–2.
See, eg, Law Society of Western Australia, Submission 111; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Law Council of Australia, Submission 108; Community Legal Centres NSW and the Community Legal Centres NSW Aboriginal Advisory Group, Submission 95; National Association of Community Legal Centres, Submission 94; NSW Bar Association, Submission 88; Change the Record Coalition, Submission 84; Women’s Legal Service NSW, Submission 83; National Family Violence Prevention Legal Services, Submission 77.
Victoria Legal Aid, Submission 56.
See, eg, National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Law Council of Australia, Submission 108; Women’s Legal Service NSW, Submission 83; Aboriginal Legal Service of Western Australia, Submission 74; Victorian Aboriginal Legal Service, Submission 39.
National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Women’s Legal Service NSW, Submission 83; National Family Violence Prevention Legal Services, Submission 77; Victoria Legal Aid, Submission 56; Mental Health Commission of New South Wales, Submission 20.
Women’s Legal Service NSW, Submission 83.
National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
Bernadette McSherry et al, ‘Unfitness to Plead and Indefinite Detention of Persons with Cognitive Disabilities: Addressing the Legal Barriers and Creating Appropriate Alternative Supports in the Community’ (Melbourne Social Equity Institute, University of Melbourne, 2017) 29.
National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
Bernadette McSherry et al, above n 52, 34.
Bernadette McSherry et al, above n 52.