THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA g committee on Canberra 1980 ISBN 0 642 05159 3 Printed by C. J. THOMPSON, Commonwealth Government Printer, Canberra Mr P. M. Ruddock M.P., Chairman Mr A. C. Holding M.P., Deputy Chairman Mr S. a Calder D.F.C., M.P. Mr J. S. Dawkins M.P. The Hon. D. N. Everingham M.P.* Mr P. D. Falconer M.P. The Hon. R. C. Katter M.P.* The Hon. I. L. Robinson M.P.* Mr S. J. West M.P.* The Hon. D. S. Thomson M.C. Acting Clerk C. J. Shrosbree House of Representatives Parliament House Canberra * The Hon. R. C. Katter M.P. was nominated to the Committee on 10 October 1978 in place of Mr D. S. Thomson M.C., M.P. Mr D. S. Thomson M.C., M.P. was nominated to the Committee on 22 May 1979 in place of the Hon. R. C. Katter M.P. Mr S. J. West M.P. was nominated to the Committee on 1 May 1980 in place of the Hon. D. N. Everingham M.P. The Hon. I. L. Robinson M.P. was nominated to the Committee on 14 May 1980 in pkce of the Hon. D. S. Thomson M.C., M.P. iii Recommendations page x 1 INTRODUCTION i The Committee I Terms of reference 1 Conduct of the inquiry ! Review of the Aboriginal legal services' Interim Charter 2 Proposed review of the operation of the Aboriginal legal services in New South Wales 2 Submission from Aboriginal prisoners at the Goulburn Training Centre 3 Definition of Aboriginals 3 Identification of different groups within the Aboriginal community 3 Aboriginal population 4 Interpretation of legal aid 4 The concept of access to legal aid 5 2 THE SPECIAL NEEDS OF ABORIGINALS FOR LEGAL AID 7 Social background 7 Discrimination within the community 7 Discrimination within the legal system 8 Geographical isolation 11 Urban Aboriginals 12 Fringe-dwelling Aboriginals 13 Traditionally-oriented Aboriginals 13 Aboriginal women 14 3 STATISTICS 17 Commonwealth Government statistical collections 17 State and Territory Government statistical collections 17 Identification of Aboriginals in statistical collections 18 Government responsibility for statistics on Aboriginals 20 Self-identification of Aboriginals 21 Statistics collected by Aboriginal legal services 21 4 DEVELOPMENT OF THE ABORIGINAL LEGAL SERVICES 24 Aboriginal Legal Service (N.S.W.) Limited 25 Western Aboriginal Legal Service Limited 25 South Coast Aboriginal Legal Service Limited 25 St Mary's and Districts Aboriginal Legal Assistance Limited 26 Victorian Aboriginal Legal Service Co-operative Limited 26 Aboriginal Legal Service of Western Australia Incorporated 26 Aborigines and Torres Strait Islanders Legal Service (Qld) Limited 26 Aboriginal Legal Rights Movement Incorporated 27 Central Australian Aboriginal Legal Aid Service Incorporated 27 North Australian Aboriginal Legal Aid Service Incorporated 27 Tasmanian Aboriginal Legal Service 27 Pitjantjatjara Legal Service , 27 WHY A SEPARATE ABORIGINAL LEGAL SERVICE? page 29 The argument for the amalgamation of legal services 29 The argument for separate Aboriginal legal services 30 Benefits of a diversity of legal services 34 Government policy 34 Conclusion 35 ABORIGINALS AND THE CRIMINAL LAW 36 Needs of Aboriginals in the criminal jurisdiction 36 Nature of Aboriginal offences 40 Role and effectiveness of Aboriginal legal services 44 Approaches to the delivery of legal aid 49 Effectiveness in metropolitan and rural areas 52 Studies of Aboriginal legal services' effectiveness 56 Effect of Aboriginal legal aid on the law and its administration 59 ABORIGINAL CHILDREN AND THE LAW 61 Jurisdiction of the children's court 61 Over-representation of Aboriginal juveniles in institutions 61 The problem of child negiect 62 Activities of the Aboriginal legal services 62 Juvenile offenders 63 The placement of children in care and protection 67 Proposals by the Department of Aboriginal Affairs 70 ABORIGINAL-POLICE RELATIONS 72 Allegations of police misconduct 72 Government strategy for improving Aboriginal-police relations 75 Aboriginal-police liaison systems 75 Police training 76 Recruitment of Aboriginal police and police aides 77 Complaints against police 79 Procedural reforms relating to interrogation and detention of Aboriginals SO ABORIGINALS AND THE CIVIL LAW 85 Needs of Aboriginals in the civil jurisdiction 85 Access of Aboriginals to the civil law 90 Ability of Aboriginal legal services to meet civil law needs 91 Aboriginal communities and organisations as clients 94 Wider significance of Aboriginal legal services' involvement in the civil jurisdiction 94 Department of Aboriginal Affairs' policy 96 Conclusion 98 ABORIGINAL CUSTOMARY LAW AND LEGAL AID 99 Concepts of appropriate punishment 99 Double punishment 99 Relationship between tribal obligations and the commission of offences 100 Juvenile offenders in traditionally-oriented communities 100 Representation of community views and interests in court proceedings 102 Recognition of Aboriginal customary law 105 Traditionally-oriented Aboriginals and civil remedies 107 Use of Aboriginal languages in courts 107 VI ABORIGINAL LEGAL SERVICES . page 10S Aboriginal legal service involvement in welfare matters 108 Social security entitlements and administrative decisions 109 Advantages of Aboriginal legal services providing welfare assistance 109 Role of the Aboriginal field officer 110 Role of the social worker 111 Attitude of the Department of Aboriginal Affairs 111 Legal aid as a welfare function 114 ision 114 12 COMMUNITY LEGAL EDUCATION . 116 Activities of the Aboriginal legal services 116 Educational needs of Aboriginal people 116 Development of educational programs 118 Role of the Commonwealth Legal Aid Commission 119 Role of the Department of Aboriginal Affairs 119 Educational role of the Aboriginal legal services in the wider Australian community 119 13 ALTERNATIVE LEGAL SERVICES 121 Description of alternative legal services 121 Establishment of legal aid commissions , 121 Factors inhibiting Aboriginals' use of alternative legal aid services 122 Alternative legal assistance available to Aboriginals 123 Aboriginals' eligibility for assistance under State-funded schemes 126 Need for co-operative arrangements between Aboriginal legal services and other legal aid agencies 127 Conclusion 129 14 ABORIGINAL LEGAL AID 131 Community participation and control 131 Need for greater community representation 135 State or regional organisations? 137 Pitjantjatjara Legal Service 143 Management of Aboriginal legal services 145 Special management reviews 147 Employment of non-Aboriginal administrators 149 Need for management training 149 15 ABORIGINAL LEGAL SERVICE STAFF AND TRAINING 151 Aboriginal legal service solicitors 151 Aboriginal legal service field officers 154 Aboriginal honorary field officers 155 Recruitment of Aboriginal staff 156 Field officer training 156 Role of the Department of Aboriginal Affairs 160 Conclusion 162 16 FUNDING 163 Common wealth funding of the Aboriginal lega! aid program 163 Criteria for the allocation of funds within different functional areas 164 Criteria for the allocation of funds between Aboriginal legal services 165 continued Formulation of aid programs page 166 Flexibility within agreed budgets 168 Triennial funding 169 Extra-budgetary funding of major cases 170 Department of Aboriginal Affairs' control of funding 171 Fiscal accountability 171 Evaluation of program effectiveness 172 Alternative sources of funds 175 Conclusion 180 NATIONAL CO-ORDINATION 182 Proposed establishment of a national secretariat of Aboriginal legal services 182 Other proposals for a national co-ordinating agency 183 Objections to the establishment of a national co-ordinating agency 183 Establishment of co-operative arrangements with the Commonwealth Legal Aid Commission 185 GOVERNMENT POLICY ON ABORIGINAL LEGAL AID 187 The policy of self-determination 187 Development of government policy on Aboriginal legal aid 188 Interim Charter 191 Implementation of policy by the Department of Aboriginal Affairs 200 Dissent by Mr A. C. Holding, M.P., Mr S. J. West, M.P. and Mr J. S. Dawkins, M.P. 205 1. List of Witnesses Page 2. Review of operations of the Aboriginal legal services in New South Wales, • terms of reference : 3. Aboriginal and Torres Strait Islander population, capital cities and State/ Territory balances (1976 National Census of Population and Housing and 4. Population of non-metropolitan Aboriginal communities, second half of 1978 2!6 5. New South Wales Bureau of Crime Statistics and Research 'Aboriginal* towns survey 217 6. Aboriginal legal services' boundaries and offices 25$ 7. Aboriginal Jegal services' staff, May 1980 219 8. Table of grants made to and amounts requested by Aboriginaf legal services, 1972-73 to 1979-80 222 9. Criminal charges, N.S.W., 1975 and 1978 Table I. Appearances in 'Aboriginal' towns, 1978 223 Table 2. Sex of drunkenness offenders by area, 1975 and 197S 223 10. Charges proceeded with and decided in Magistrates' Courts, W.A., December 1973 to 1976 Table 1. Charges resulting in imprisonment 224 Table 2. Totai charges 225 11. Cases iinalised by the Central Australian Aboriginal Legal Aid Service by nature of matter, 1973 to mid-1979 226 12. Penalties for drunkenness by area, N.S.W., 1978 22? 13. Prisoners in gaol OH the night of 30 June 1977, W.A. 22S 14. Aboriginals and non-Aboriginals in prison, major offences, S.A., 30 June 1976 229 15. Study of the Central Australian Aboriginal Legal Aid Service, 1973 to mid-1979 Table 1. Number of cases for each client 230 Table 2. Address and sex of clients 23© Table 3. Age and sex of clients 23! 16. Circular Memorandum No. 13 of 1979, 'Interrogation of Suspect', Police Headquarters, Darwin, 15 May 1979 232 17. Police Commissioner's Office Circular No. 354, 'Aboriginal Legal Rights Movement—Field Officers and Police Liaison Officers', Adelaide, 24 March 1975 235 18. Australian Legal Aid Office, breakdown of applications approved, 1978-79 23S 19. Analysis of Commonwealth expenditure on Aboriginal legal aid, 1970-71 to 1979-80 239 20. Analysis of Aboriginal legal services' per capita expenditure, 1978-79 240 21. Analysis of Aboriginal legal services' estimated cost per case, 1978-79 241 22. The Aboriginal Legal Service Program Mt 23. Aboriginal Legal Services' Interim Charter 244 24.