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Vanstone is dismantling the right to a fair trial for Aboriginal people

By Gwynn Mac Carrick - posted Thursday, 20 May 2004


For an increasing number of Australians, legal aid is a precondition to their ability to use the justice system. This is a fact compounded for Aboriginal Australians by the recent decision of the federal government to outsource Aboriginal Legal Aid for competitive tender. Having worked as a criminal lawyer for both Australian Legal Aid and Aboriginal Legal Aid, I feel the need to comment on the planned tender and the encroachment that it entails upon Indigenous rights in this country.

Tendering processes have a lowest-common-denominator objective. Invariably this asks "who can do the job the cheapest". Thus, tendering services, under usual circumstances, is a method of maximising efficiency. There are, however, circumstances in which the desire to be efficient is superseded by a competing objective – the desire to create a social or public "good". Aboriginal Legal Services are a case in point.

Aboriginal Legal Aid Services (ALSs) were originally set up to address inequity and cultural disadvantage, premised upon the presumption that indigent Indigenous clients get the best representation from a service that is committed to the principles of access to justice and equality before the law. Opening up legal welfare services to the process of private competitive tender, and thereby awarding efficiency over principal, is counter-productive to the organisational objective to do "good".

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It is no secret that in the private sector you get what you pay for. In private practice, a legal-aid file, no matter what work is done on it, will only ever earn lawyers a flat fee. Practitioners then, will only ever do that which is required and no more, preferring to concentrate on the clients they can bill by the billable unit. It is only natural, after all.

It follows therefore, that the effect of sourcing legal aid to the private sector is a return to unequal access to justice. That is to say, the very rationale behind the setting up of legal-aid services is defeated by the private sector’s profit motive.

The legal-aid file sits at the bottom of the pile as an afterthought.

This is why it is imperative to maintain strong legal-aid organisations with in-house salaried lawyers. Legal organisations that provide a community service are always going to lose the debate about efficiency, because "going that extra mile" for the client is not cost effective. It does however, address a power imbalance caused by disparate wealth.

The advantage of the community sector is that while they have had to account for every dollar in recent time, and have had to withstand massive budget cuts requiring them to do more with less, they have not forgotten their foundational philosophical underpinnings. Arguably, a salaried lawyer is better placed to take up ideological battles and pursue Indigenous law reform issues through the legal system.

Aboriginal Legal Services also serve a cultural function, which cannot be fulfilled by private contractors. ALSs act as a central agent or "first port of call" for referral to a body of cultural, social, economic and welfare oriented Indigenous networks. In very real terms Aboriginal Legal Services demystify bureaucracy and empower individuals by providing general advice as to rights, options, and where clients might seek assistance for non-legal issues.

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But this relationship is tentative, based on trust, and dependent upon Indigenising the service to the extent that there exists a degree of credibility within the local Aboriginal community – ideally Aborigines supporting Aborigines or at the very least deemed to have adopted an Aboriginal ethic.

As a lawyer for Aboriginal Australians in the courts of remote New South Wales, I worked alongside a cultural officer at all times. This officer was recruited on the basis of his standing within the Aboriginal community as a respected elder. In the presence of an elder, I had a greater chance of eliciting comprehensive instructions in the police cell. My advise also carried weight because it was issued in the presence of a significant person. I too, was made more aware of the sensitivities and relevant cultural issues that I might otherwise have been oblivious to.

Under the terms of the current government’s bidding process, the successful tenderers will not be required to employ Indigenous staff or be an Indigenous organisation.

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About the Author

Gwynn MacCarrick is a Human Rights lawyer based in Hobart. She has appeared as Defence counsel before the UN Special Panel for Serious Crimes in East Timor, has worked with the Office of the Prosecutor at the UN Criminal Tribunal for the Former Yugoslavia, and in between her domestic criminal practice has taken up various postings with the UN High Commission for Refugees. Gwynn is undertaking a doctorate in international criminal law at the University of Tasmania Law School.

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