Renouf, Gordon --- "Aboriginal and Torres Strait Islander legal services: threats and opportunities" [1998] ALRCRefJl 19; (1998) 73 Australian Law Reform Commission Reform Journal 11

• Reform Issue 73 Spring 1998
• This article appeared on pages 11 – 12 of the original journal.

---

Reform Issue 73 Spring 1998
This article appeared on pages 11 – 12 of the original journal.

Aboriginal and Torres Strait Islander legal services: threats and opportunities

By Gordon Renouf*

"... no organisation looked at the real problems of what occurred to our people in the early days. Because we're too busy getting legal assistance, housing and help, but the real problem was culture, background.”¹

Aboriginal legal services (ALS) were first established in the early 1970s, in the Sydney suburb of Redfern, Melbourne, Alice Springs and many other towns. Services were primarily set up in response to concern at mistreatment by police and/or concern about the fact that Aboriginal defendants in criminal proceedings were largely unrepresented.

In 1998, Aboriginal and Torres Strait Islander legal services (ATSILS) are facing new challenges. These include new restrictions placed on them by the Aboriginal and Torres Strait Islander Commission (ATSIC), threats to overall funding levels arising from the Commonwealth’s budgetary decisions, and higher expectations on them from Indigenous communities. There are also opportunities for Aboriginal legal services to focus their attention on how best to serve their communities.

Aboriginal and Torres Strait Islander legal services are funded under ATSIC’s law and justice funding program. ATSILS vary in size, area covered, in funding sources and in the range of work that they undertake. Some larger services are also the Native Title representative body for their state and are separately funded to undertake this work.

In four States there is one statewide service. In NSW, Queensland and the Northern Territory there are several regional services (four in the NT and more in the other states). The largest ALS (in WA) has 42 lawyers and is one of the largest legal practices in that State. On the other hand the Miwatj legal service at Nhulunbuy in the Northern Territory currently has one employee.

In addition to the ATSIC-funded services, other services have been established to provide legal advice and representation to Aboriginal and Torres Strait Islander people. The Commonwealth community legal centres funding program provides funds to seven women's legal centres to provide Indigenous services (in southern and northern Queensland and one in each other State). Most of these services have an Indigenous subcommittee responsible for the running of the Indigenous services. In addition, there are three women’s legal centres in the NT, operated by management committees with varying degrees of Aboriginal participation, which receive funds specifically to provide services to Aboriginal and Torres Strait Islander women.

ATSIC

Over the past three years ATSIC has increased its support to Aboriginal legal services. At the same time, it has increased its level of intervention in the operation of ATSILS. ATSIC has, for example:

• protected ALS funding from the across the board cut to ATSIC’s revenue in 1996;

• provided additional funds to support the changes to ATSILS it perceived as necessary;

• conducted a program of reviews of Aboriginal legal services;

• developed model service guidelines and negotiated their introduction in each legal service;

• developed or extended the so-called ‘performance indicators’ against which Aboriginal legal services must report;

• fostered the development of measures to guarantee quality of service; and

• reorganised the structure of ATSILS in NSW based on a ‘tendering’ model of funding.

ATSILS views vary on the effectiveness of the ATSIC program in improving services to clients. The Council of the North Australian Aboriginal Legal Aid Service (NAALAS) supports many of ATSIC's initiatives, but is critical of the way in which ATSIC has imposed a set of statistics that do not meet our needs and are incorrectly called ‘performance indicators’. The Council is also concerned about our client communities’ reaction to the restrictions on certain kinds of casework that flow from the agreed guidelines. On the other hand, the Council acknowledges that it is important to target casework assistance to those cases that are likely to offer the most positive outcomes for the Aboriginal and Torres Strait Islander residents in our area.

ATSILS vary in their current ability to undertake work in areas other than criminal representation. Many would argue that there are significant gains to be made for clients of ATSILS through work focusing on broader Aboriginal rights such as discrimination, quality of government services, access to education, health and employment, and on protection of culture. Moreover, there is a clear need for community legal education and for legal support to communities wishing to develop their own solutions to social problems that give rise to offending.

In NSW, ATSIC hopes that the restructuring of NSW ATSILS and/or the additional support provided by the State office will result in more efficient and effective criminal casework services, thus paving the way for resources to be allocated to other areas. I am concerned that funding levels are not sufficient for this to occur. Better efficiency will probably mean the criminal clients get a better service, but may not stretch a great deal further. This is not to say that there are no current initiatives beyond criminal casework: the South Coast ALS in NSW operates an effective prevention program in relation to young offenders,² and at NAALAS a major test case in relation to the ‘stolen generation’ is well underway. Nevertheless, additional funding will be essential to provide even the level of service expected by non-Aboriginal Australians of the legal aid system.

Recent attention has prompted some ATSILS to reflect on their operations. What is the most effective way to advance the interests of client communities? Is it criminal casework? Civil and family casework? Test cases about rights to education, health or for compensation to the ‘stolen generation’? Or should the focus be on community legal education and development, advocacy and law reform work? No doubt the answer is an appropriate combination of all of these for each area. Unfortunately, funding constraints and other barriers are limiting ATSILS’ ability to confront these questions.

* Gordon Renouf is the director of the North Australian Aboriginal Legal Aid Service (NAALAS), based in Darwin.

Endnotes

1. Jim Berg, in Faine J., Lawyers in the Alice, Federation Press 1993, p. 24.

2. See Aboriginal Law Bulletin, July 1998, p. 20.