Opinion piece: It took decades to build an effective Indigenous legal network - now it's under threat
26 August 2019
Opinion piece by Law Council of Australia President, Arthur Moses SC – published on the Sydney Morning Herald, Monday, 26 August 2019.
In 1970, Redfern was a hard place to live. The infamous Three Sisters public housing blocks cast a long shadow over the suburb. If you were Indigenous, it was an even more difficult place to live.
Racist policing, segregation by curfew and arbitrary arrest were rife. The authorities were emboldened by the Askin state government's Summary Offences Act. These laws turned minor misdemeanours into offences and criminalised a generation of youth according to race and class.
But a group of courageous young Aboriginal students turned the tables. They trailed police, making notes on their behaviour towards the Aboriginal community. They amassed a vast amount of incriminating evidence. These notes were enough to persuade Hal Wootten, then Dean of Law at the University of NSW, to help them establish their own shopfront on Regent Street. Australia's first dedicated Aboriginal legal service opened in December 1970.
Redfern provided a blueprint, and others sprung up around the country. Since then, Aboriginal and Torres Strait Islander Legal Services (ATSILS) have provided a culturally appropriate service for some of the most marginalised people in our community.
But they are under threat. The federal government is proposing to roll the Indigenous Legal Assistance Program into a single funding mechanism in five years. This plan undercuts the key reason the ILAP was established - to recognise First Nations peoples not only need access to more legal services but also specialised legal services.
It will place additional burdens on National Aboriginal and Torres Strait Islander Legal Services to negotiate funding directly with state and territory governments.
Given ATSILS are often fierce critics of state and territory laws, this may restrict their ability to freely advocate on these issues.
It also runs counter to a 2018 government-commissioned independent review, which found that, through ILAP funding, ATSILS provide cost-effective, high-quality, culturally appropriate and accessible services. It noted "an increasing body of evidence in Australia and internationally" that the best-practice approaches to addressing Aboriginal and Torres Strait Islander disadvantage involved communities controlling their response to challenges that affect them.
ATSILS are strong advocates for laws and policies that empower First Nations peoples. The Law Council of Australia is a staunch ally of these services.
The extreme overrepresentation of First Nations peoples in the justice system requires a tailored and dedicated response. First Nations are entitled to equality before the law and they need to retain the services that give them an effective voice to pursue this ideal. The Law Council's Justice Project found many First Nations peoples' distrust and fear the justice system.
It is symbolic of Australia's history of colonisation and dispossession.
Many First Nations peoples view our justice system as another tool of disempowerment and destruction.
Cheryl Axelby, co-chair of Change the Record and NATSILS, believes the single funding mechanism will have a devastating impact because they "will no longer be able to guarantee culturally safe legal services".
Regrettably, when I have spoken to First Nations peoples around Australia, I have often heard words that echo Clarence Darrow, the legendary US defence attorney of the early 20th century, who said: "There is no such thing as justice - in or out of court." In the 21st century, all Australians have the right to justice - in and out of court.
Arthur Moses SC
President, Law Council of Australia