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

The degree to which the tender process will impact upon Indigenous justice, already in crisis, cannot be overstated. Travelling to various courts spotted throughout rural New South Wales, I personally became aware of the epidemic of Aboriginal over-representation in our prison system, observing that Aboriginal Legal Aid lawyers on any given day, in any given rural courthouse, represent near two thirds of the court list.

While the Royal Commission into Aboriginal Deaths in Custody seems now a lifetime ago, it must be remembered for having made several policy recommendations to tackle the problem of Aboriginal over-representation, and death, in our prison system. Without doubt, Aboriginal Legal Services, committed to community life and culture, are integral to a more just Australia outlined in the Commission’s recommendations and extensively articulated in Australia’s international treaty obligations.

Foremost among treaties for which Australia is a signatory, is the Universal Declaration on Human Rights, which includes provisions relating to the inalienable right to a fair hearing, and the basic right of every individual to access the justice system. One would have assumed that these rights had translated into our political culture and become enshrined in our constitutional heritage – not so. It would appear that it is no longer a tennet of political life that the weak are protected from the insults of the strong. It seems now we can not rely upon equal protection before the law, or upon safety nets for the disadvantaged.

On 19 April, Minister Vanstone further aggravated the government's position by flagging a tightening of aid eligibility by cutting grants of Aboriginal aid for serious repeat offenders. While political minders have since distanced the Minister from her comments, stating that there will be no prohibition on legal aid available to Aboriginal applicants with prior convictions, we now know where she is travelling with the tender process.

We also know that successful tenderers will be required to shift priority from criminal cases, which presently make up an overwhelming majority of Aboriginal Legal Services cases, to child welfare and family violence matters. This, in real terms, will achieve the Minister's objective (reducing aid to serious criminal matters) through the back door. Tenderers are now on notice that the government does not favour directing funds to repeat offender/serious criminal cases - and should structure their bids accordingly.

Let's not kid ourselves, the government has opened a cut-throat competitive bidding war for a $122 million, two-year contract and justice for Aboriginal defendants will be the loser.

The Principal Lawyer for the Central Australian Aboriginal Legal Aid Service, David Bamber said that “[t]he introduction of means testing and reduction of the number of types of matters for which aid is granted [mean that] services such as our after-hours services, a lot of our field services and services to the bush, would surely be cut.”

The Howard government is displaying a reckless abandonment of the right to a fair trial in this country. It has always been the case that an applicant, facing the prospect of imprisonment would be guaranteed legal representation. It now seems Indigenous Australia is to be cut adrift.

This, of course, translates to serious inroads into the once-robust notion of a "fair trial" as the uninitiated Aboriginal defendant attempts to muddle their way through the maze that is the modern criminal legal system. The result is irreparable damage to justice in Australia generally, for it has always been the case that "access to the law is the alternative to the jungle".

If Australia ever finds a path to reconciliation, it will be because of the nobility of spirit and the generosity of Aboriginal people to move beyond both historic and contemporary wrongs. Far from moving towards reconciliation, our present political culture is taking active steps to establish an apartheid system of justice, where some are more equal than others.

In the final analysis, the Reconciliation marches across Australia mean very little viewed objectively – just token symbolism in a country where concepts such as "equality before the law" and the "right to a fair trial" are fast becoming forgotten virtues of an Anglo-Saxon legal tradition.