Smith, Kevin --- "Meeting the pressure" [1998] ALRCRefJl 20; (1998) 73 Australian Law Reform Commission Reform Journal 13

• Reform Issue 73 Spring 1998

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Reform Issue 73 Spring 1998

This article appeared on pages 13 – 15 of the original journal.

Meeting the Pressure

By Kevin Smith*

The Aboriginal and Torres Strait Islanders Corporation for Legal Services - known as the QEA - is a community based organisation that exists to provide legal advice, assistance and representation to Indigenous persons in a 200 kilometre strip from Nambour in the north to Coolangatta in the south, including the Brisbane metropolitan region.

Formed in 1972, the QEA is the longest serving Aboriginal and Torres Strait Islander legal service in Australia and remains a successful working model of the principle of Indigenous self-determination. This principle is apparent in the corporate structure and operation of the organisation. The QEA is incorporated under the Aboriginal Councils and Associations Act 1976 (Cth) with membership and board control in the hands of Aboriginal and Torres Strait Islander people. More than half the QEA’s staff members are Indigenous Australians, including the Chief Executive Officer and Principal Legal Officer. Of the 10 legal practitioners, three are Indigenous.

The magnitude and importance of QEA's task becomes apparent in consideration of two frequently quoted statistics.

• Queensland has the highest population of Indigenous Australians (approximately 70,000 of a national population of 266,000).¹

• National statistics show that although Indigenous Australians make up only 1.4 per cent of the population, Indigenous Australians over the age of 15 years account for approximately 14 per cent of prison populations.²

The QEA operates in the cold, hard reality where these statistics meet. Approximately 25,000 Indigenous Queenslanders reside within the service’s geographical boundaries. In this area, there are 17 Magistrates Courts; four District Courts; one Supreme Court; one Court of Appeal and eight correctional facilities.

Community expectations

Before 1996, the QEA, although predominantly a criminal law practice, did operate as a general practice offering services in the legal areas of family; estate; personal injury litigation; and taxation assistance. It also had a welfare role in organising juvenile activities; family assistance and a transportation network to ensure clients attended court. The welfare service reflected an ill-fated but well intended initiative to provide a holistic approach to crime prevention, social justice and community support.

At this time, there was considerable community pressure on the QEA, as one of the largest Indigenous community service providers in the South-East Queensland region, to play a broad role in the Indigenous community. From 1994 to 1996, the QEA laboured under the diversity of its responsibilities. It was eventually threatened with collapse and in 1996 the organisation was placed under administration.

A change in federal government in March 1996 with radical differences in Indigenous policy and funding priorities to its predecessor, exacerbated the QEA's dilemma. Faced with rationalisation or liquidation, QEA reluctantly jettisoned its welfare role and pared back its legal operation to a court-based criminal law practice.

In the two years since then, QEA has restructured itself into a viable service provider to Indigenous people in the criminal justice system. Because of this restructuring, the QEA was also forced to embrace the challenges of formalising links with other Indigenous service providers, to ensure that the recipients of its former welfare services were not abandoned. In this regard, the QEA now refers Indigenous persons to the relevant preventive, diversionary, welfare and education services.

Since QEA’s restructuring, Indigenous people in the region have been deprived of a legal service that covers the important areas of family law and civil litigation, as well as representation before the Anti-Discrimination Tribunal and Human Rights and Equal Opportunity Tribunal.

Funding challenges

Like all Aboriginal and Torres Strait Islander legal services, the QEA receives its budget from the Aboriginal and Torres Strait Islander Commission (ATSIC). However, unlike many Indigenous legal services, the QEA does not receive funds to offer family law services and conduct civil litigation on behalf of its clients. This is largely because the restructuring of QEA into a specialised criminal law practice was critical to continued funding from ATSIC.

The QEA remains willing to offer general legal services, but there are a number of practical difficulties. In July this year, ATSIC implemented triennial funding, effectively ruling out any opportunity for the QEA to diversify its activities until the year 2001. As well, the shortage of ATSIC funds generally and expensive ‘set-up’ cost for internal family law and civil litigation departments means such projects are unlikely to be approved. Regrettably, the result is that Indigenous people within the QEA’s jurisdiction are deprived of services that other Indigenous people in other parts of Australia receive as a matter of course.

During the restructuring, the organisation was forced to reduce costs by closing a regional office and operating from a central office in Brisbane: savings in administration costs were negated by time wasted in covering the geographical distances in outlying suburban and regional courts and prisons. The QEA has only recently opened a regional office at Beenleigh, south of Brisbane, to cover the southern region of its operation. There is a clear need to open a northern office, but funding will not be received in the foreseeable future.

Another pressing concern caused by the lack of funds is the inability to brief private lawyers when a conflict of interest arises. Conflicts of interest can occur when, for instance, co-accused are represented by the QEA but give instructions that implicate each other. In this situation, the QEA's policy is that it will retain instructions from the person who first contacted the QEA. Any other co-accused will then be referred to the Legal Aid Office. The disadvantage experienced by the referred client(s) is that that person(s) must meet stricter merit and means test criteria under the State Legal Aid Office policy than the QEA client.

A second example of conflict of interest arises in ‘Aboriginal v Aboriginal’ matters. If the accused and the complainant are both Indigenous Australians, it requires the QEA's employed solicitor to cross-examine an Aboriginal complainant. In this situation, the QEA solicitor walks a tightrope. He or she is trying to balance the community and cultural expectations and sensitivities of an Indigenous organisation acting against an Indigenous victim of crime against the need to provide competent and culturally sensitive representation to an Indigenous accused. Due to funding and policy guidelines, the QEA is unable to act for an Indigenous accused in cases where an Indigenous complainant needs to be cross-examined. In these circumstances, the Indigenous accused will also be referred to the Legal Aid Office. Again, he or she will be subjected to the Legal Aid Office’s strict merit and means test before legal assistance will be rendered.

As a result of the lack of funds for family law matters and the problems associated with briefing out cases to private solicitors, Indigenous women, in particular, are adversely affected. Even if there were funds for family law matters, invariably, the QEA could not accept instructions in a disputed residence or contact application under the Family Law Act because of the ‘Aboriginal v Aboriginal’ rule. Technically, the QEA could not act unless the other Indigenous party consents in advance to the orders sought to avoid a conflict. In this emotion-charged area of litigation, consent at an early stage is unlikely. The only means of redressing this concern is an increase in funding to provide services in family and civil law matters and to allow the QEA to brief out matters to private solicitors to obviate the need to refer clients to the Legal Aid Office.

External challenges

Funds for Indigenous legal services are regularly threatened - either directly through federal government cuts, through the abolition or reduction of funds via ATSIC or via the flow on effect of reducing funds to State Legal Aid Offices. The federal coalition has entertained the concept of putting the provision of Aboriginal and Torres Strait Islander Legal Services out to tender. Such an approach would be considered by the QEA to be retrograde and a denial of Indigenous rights to self-determination. The success of these legal services is that they are driven by Indigenous people who employ and provide services to Aboriginal and Torres Strait Islander people. Put simply, no amount of remuneration offered to a commercially focused legal service provider could meet the dedication of a 'grass roots' movement driven by Indigenous Australians who are motivated by nothing more than the sheer will to see their legal services survive.

Another challenge faced by Indigenous legal services is regular suggestions that they be abolished and replaced by Indigenous units within the mainstream Legal Aid Offices. With the greatest respect to the Legal Aid Offices, the last thing Indigenous people need is a return to the days of bureaucratic red tape. Community based organisations provide the flexibility and sensitivity to act in an efficient and effective manner.

Aboriginal and Torres Strait Islander legal services already have an excellent working relationship with Legal Aid Offices to provide funds for higher court matters (District and Supreme Courts). The State Legal Aid Office pays for the barristers' fees and the legal service retains the instructing solicitor at no cost to the Legal Aid Office. This ensures continuity of service to the client without suffering a blow-out of costs involved in briefing experienced counsel.

As of July last year, the federal government limited federal funding to State Legal Aid Offices to matters that involved Commonwealth legislation. To date, this has not affected the working relationship between Aboriginal legal services and the State Legal Aid Offices. However, with the Queensland Law Society estimating that the shortage of funds from this decision will be $230 million dollars over six years, it is not unreasonable to assume that the relationship could be jeopardised in the foreseeable future. To preserve the status quo, the federal government may need to quarantine sufficient funds to enable it to exercise its duty to Aboriginal and Torres Strait Islander people under the Constitution, irrespective of whether the Indigenous person is charged with State or Commonwealth offences within the criminal justice system.

The public dollar does not go far in redressing the disadvantage suffered by Indigenous Australians. Whole programs have been abolished and remaining ones substantially reduced due to ATSIC funding cuts. QEA has redefined itself in this climate. Its survival is a testament to the will of Indigenous people to ensure the retention and development of worthy peak services.

Community based organisations with keenly focused corporate goals, competent staff and reasonable resources are the best models to provide services to Indigenous people. It is incumbent upon governments, irrespective of political persuasions, to acknowledge this and provide adequate funding and support to ensure their meaningful survival.

* Kevin Smith is a QEA solicitor and was its Chairperson between September 1996 and March 1998.

Endnotes

1. Australian Bureau of Statistics, 1991.

2. Walker J., ‘The Over Representation of Aboriginal and Torres Strait Islander People In Prison’ (1994) 6 Criminology Australia, see also The Courier Mail, 13 August, 1998, p. 10.