Josephine Polak
Legal services for Indigenous Australians are about to be destroyed by a dangerous plan driven by the "ideological agenda to mainstream Aboriginal services" and "undermine the right of Indigenous Australians to self-determination", according to a National Association of Community Legal Centres (NACLC) media statement.
In the wake of the abolition of ATSIC, the peak self-governing Indigenous body in Australia, the federal government has released a draft plan to publicly tender the right to provide legal aid services to Indigenous Australians from 2005.
According to ABC Online on April 1, Indigenous affairs minister Amanda Vanstone said that Indigenous people were not getting value for money, and "the bottom line is when you tender, when you put people to competition you find out who can deliver the best services". But in a letter responding to Vanstone, NSW attorney general Bob Debus argued that the Aboriginal and Torres Strait Islander Legal Services' (ALS) capacity to deliver services is limited by a "chronic lack of funding", and under the draft tender arrangements, "funding will be cut by an estimated $2.4 million per year".
"The Government is forcing this upon us", Marcelle Burns, solicitor at Many Rivers Legal Service in Lismore, told me in an interview. "They are saying that Aboriginal people are not getting value for money. But on an equitable basis, comparing [the Aboriginal Legal Service] to mainstream legal services, we get less funding than legal aid." Burns cited a 2003 national audit report, which illustrated that if ALS received the same amount of funding as mainstream legal aid, "we would get another $28 million a year". He added, "The Government is saying there are inefficiencies in the ALS, but the report shows we are under-funded".
An April 15 press release from Vanstone's office stated that in part, "the new approach is based on all of us accepting responsibility. We all need to do better — the Australian Commonwealth, state and territory governments and Indigenous people themselves."
"For too long we have hidden behind Indigenous programmes and organisations. Some have called this 'self-determination' but too often it has been an excuse for avoiding responsibility and passing the buck".
Sam Jeffries, chair of ATSIC's Murdi Paaki regional council, said in an April 27 statement that Aboriginal and Torres Strait Islander people have always been willing to take responsibility for themselves, "if given the opportunity, commitment and capacity — legislative and financial — to do so".
The draft says that the successful applicant for tender will be a "culturally appropriate service", but makes no stipulation that the organisation be Indigenous, or employ any Indigenous staff. "Theoretically, other organisations that have better resources could provide better services", claimed Burns. "But if ALS was given appropriate funding, they could offer the same level of service, in a far more culturally appropriate way."
According to Debus, local Aboriginal community control is "one of the most fundamental principles and greatest strengths of the ALS", and will be destroyed by the government's move. "If you employ Aboriginal people who have connections to the community, they are in a better position to understand what's going on.
"Unlike private solicitors, who have difficulty communicating with their clients, ALS has no difficulties in communicating or accessing information in communities because of the Indigenous staff they employ — they understand Aboriginal culture and speak the language."
ATSIC Commissioner Steve Gordon said in an April 28 statement that the tender is "a move to revive mission management practices and gag the voice of Indigenous Australia".
Burraga Gutya (Ken Canning), academic and cultural adviser at the University of Technology Sydney's Jumbunna Indigenous Centre, told me that the plan reminds him of the government's treatment of Indigenous people in his youth, when "we were completely controlled — completely. You couldn't move to another area without permission ... South Africa took the mechanisms for apartheid from us".
Gutya sees abolishing Aboriginal-controlled bodies as "yet another way of taking something away from us ... It's about eroding Indigenous control of Indigenous organisations." The consensus among ATSIC regional councils is that the move will take away Indigenous people's voice and return them to being passive recipients of government programs.
The draft tender sets out criteria that the successful organisation must follow. This places criminal law — which makes up 98% of the ALS cases — at the bottom of the list, and gives family law the highest priority, which will make it difficult for the service provider to represent the number of criminal cases currently dealt with.
"At the moment we're funded to do criminal law only", said Burns. "They are cutting funding but expecting ALS to do more ... [With those priorities] the risk is that we'll end up with more people in custody". The draft also proposes that service providers be allowed to refuse legal assistance to people with prior violence offences.
According to Debus, the majority of Aboriginal people who appear in court have a prior offence, and this rule would deny a significant number of Indigenous criminal defendants access to legal services. The NACLC predicts that these priorities will leave more Aboriginal people without representation and subsequently increase the rate of imprisonment.
Ironically, Indigenous activists and lawyers established the Aboriginal Legal Service in Redfern in 1970 for the purpose of reducing incarceration and police harassment of Aboriginal people. The service that the government describes as "inefficient" was Australia's first free legal service, setting the model for mainstream community legal aid.
"Where we've made inroads into these services, non-Aboriginal services have benefited greatly from it", said Gutya. "Through the long and protracted struggle for reform by Aboriginal people, there have been reforms for the whole society. Why would we then turn around and take away the organisations that helped bring about so much reform for everyone?"
The draft prefers a single provider of legal services in each state, which was the status quo in 1970. Aboriginal communities recognised then that a single service could not meet their needs and lobbied for and established regionally based services, said Debus. He added that returning to failed methods of the past will only "exacerbate Indigenous peoples' lack of access to legal assistance and their ability to obtain justice".
The NSW Labor government is opposed to the tender. Debus claimed that the plan will have a "grievous impact upon Aboriginal people in this state". He said that the tender "is piecemeal, retrograde and disempowering of Aboriginal people ... and potentially disastrous".
Northern Territory ATSIC Commissioner Alison Anderson called for Territorians to protest against the government's decision. In a media release in April she stated: "History has shown that mainstreaming services has never worked for Indigenous Australians. The federal government's own documents and reviews have highlighted the need and urgency to empower Aboriginal people. What other clue does John Howard need?"
From 91×ÔÅÄÂÛ̳ Weekly, June 30, 2004.
Visit the