10.1     ‘Access to justice’ is an essential element of the rule of law. In essence, access to justice refers to the ‘affirmative steps’ necessary to ‘give practical content to the law’s guarantee of formal equality before the law’.[1] It refers to the need to ameliorate or remove barriers to access[2] and ‘must be defined in terms of ensuring that legal and judicial outcomes are just and equitable’.[3] It is enshrined in art 14 of the International Covenant of Civil and Political Rights (ICCPR).

10.2     This chapter is focused on specific access to justice issues faced by Aboriginal and Torres Strait Islander people appearing as defendants before the criminal justice system. Communication barriers, alienation and disconnection from mainstream court processes, as well as mental illness and cognitive impairment all contribute to the complexity of Aboriginal and Torres Strait Islander legal needs and limit access to justice. In this chapter, the ALRC makes a suite of recommendations targeted at addressing these needs and improving Aboriginal and Torres Strait Islander peoples’ experience with the courts. The ALRC recommends that state and territory governments:

  • work with relevant Aboriginal and Torres Strait Islander organisations to establish interpreter services within the criminal justice system where needed, and monitor and evaluate their use;
  • establish specialist Aboriginal and Torres Strait Islander sentencing courts in areas and regions where needed that are designed, implemented and evaluated in partnership with Aboriginal and Torres Strait Islander organisations; and
  • where a person is found unfit to stand trial, introduce special hearing processes that provide for a fixed term of detention and regular periodic reviews while the person remains in detention.

10.3     The need for adequate resourcing of legal assistance providers is also discussed in depth in this chapter. Access to legal representation and advice is one of the cornerstones of addressing the disproportionate rates of Aboriginal and Torres Strait Islander incarceration. In the absence of legal representation and advice, a defendant may be incarcerated for a range of reasons, including sentencing following an inappropriate guilty plea, a lack of awareness of available defences or pleas in mitigation.