Perth, Western Australia.
THE HON MARK DREYFUS QC MP
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
SPEECH TO THE ANNUAL CONFERENCE OF THE NATIONAL ASSOCIATION OF COMMUNITY LEGAL CENTRES
Good afternoon, I’d also acknowledge the traditional owners of the land on which we meet and acknowledge their elders past and present. I also acknowledge the presence of my colleagues Senator Patrick Dodson and Senator Louise Pratt, and acknowledge the ability of NACLC to get nearly all members of the WA Federal Parliamentary Labor Party here to this event.
It is great to be in Western Australia this year. I have spent the last two days further north in Broome– and was particularly pleased to visit the Aboriginal Legal Service, the Kimberley Community Legal Centre and the Family Law Service, to hear first hand about the important work being done there. I will return to what I saw in Broome shortly.
I know that these conferences are a highlight of each year for many involved in the legal assistance sector. Not just CLC lawyers and staff, but also those who support and work with them.
Having attended several NACLC conferences as Attorney-General and now Shadow Attorney-General, they have become a highlight of my year too.
It is a pleasure each year to catch up with hard-working and dedicated community lawyers and CLC staff from around the country. To see the community legal movement coming together to share its knowledge and expertise, and to hear about the achievements of CLCs across Australia in the year just past.
It is also a time to hear of the very grave challenges faced by CLCs in the current climate – something I will return to in a moment.
But I wanted to talk a bit about Indigenous justice. As a gathering of Australians concerned about access to justice, about a fair and just legal system, and about human rights – one topic should be front and centre for us today.
Millions of Australians have been shocked by recent revelations about the state of youth justice in the Northern Territory.
Shocked that these things could happen here in Australia.
Shocked that they could happen even now, after all the progress we had thought had been achieved.
And rightly so.
As I said, this is a gathering of people who care deeply about justice, about human rights.
A gathering of people who have chosen to build a fairer society through the law. And I don’t mean building a fairer society through creating new laws, although law reform advocacy may well form a very important part of a community lawyer’s work. I am talking about providing access to the law for so many Australians who would otherwise be unable to enforce the rights that they already have.
As you would have heard me argue many times before, we could have the most just laws on Earth, but a paradise of justice that exists only in the pages of statute books is of little value if it is not the lived experience of our citizens.
Certainly, the legal assistance services that you provide serve a vital role in building a more just society, by providing access to justice to so many people who might otherwise be denied this fundamental right - the poor, the sick, the young, and the old.
Generations of Australian lawyers have sought to correct these injustices.
However, the foundation of our legal system was British colonisation, and the dispossession of Australia’s first peoples was its original sin.
As Paul Keating said at Redfern, achieving justice for Indigenous Australians is:
“a fundamental test of our social goals and our national will: our ability to say to ourselves and the rest of the world that Australia is a first rate social democracy, that we are what we should be - truly the land of the fair go and the better chance.”
This is as true of our law as it is of any part of our collective life together as Australians.
The history of Australian law, of the progress of Australian justice, is in so many ways the history of Aboriginal empowerment.
These are the great legal milestones we celebrate. The 1967 referendum. The passage of the Racial Discrimination Act in 1975. The Land Rights Act in 1976. Mabo and Wik.
There are further milestones we have to work towards.
Very soon, I hope, the constitutional recognition of Australia’s Indigenous peoples.
And one day – after that recognition has been achieved – possibly even Treaty.
The struggle of Indigenous Australians for justice is not just inseparable from the history of Australian law.
It is also inseparable from the history of the activist movements which led to the establishment of modern legal assistance services.
It was the establishment at the very start of the 1970s of Australia’s first Aboriginal legal service which marked the beginning of the great changes in our legal profession which took place in that era.
Changes which would see the establishment of modern Legal Aid and of the vibrant community legal centre movement represented here today.
Perhaps it is because we are proud of what has been achieved over the decades – of changes to our Constitution and to our laws, of landmark High Court decisions, and of greater access to justice – that we are so shocked by what has been revealed in the Northern Territory last month.
Perhaps it is because we have been here before.
It was almost thirty years now since the Hawke Government established the Royal Commission into Aboriginal Deaths in Custody to investigate the treatment of Indigenous people in custody of prison, police or juvenile detention institutions.
The Royal Commission investigated the deaths of 99 people and came to the damning conclusion that:
“facts associated in every case with their Aboriginality played a significant and in most cases dominant role in their being in custody and dying in custody.”
Quite properly, this Government has called another Royal Commission in response to the recent revelations about the Don Dale Youth Detention Centre.
I regret that the establishment of this Royal Commission was so badly mishandled by the Government.
I could not help but smile at a frame drawn by one of our contemporary sages, the First Dog on the Moon, who warned “Don’t get between George Brandis and an opportunity to do something stupid, you will be trampled.”
However, now that the initial failures are behind us, both Federal and Territory governments should make this process and the findings and recommendations it produces a matter of absolute priority.
Indeed all Australian governments should be watching closely.
We should not pre-empt the specific findings of the Royal Commission, but of course we do already know some of the root causes of the experience of Indigenous youth in our corrections system and of the experience of Indigenous people in the criminal law more broadly.
We know that mandatory detention has a disproportionate effect on Indigenous Australians.
We know that a fundamentally adversarial approach to policing and the enforcement of the criminal law is inevitably felt hardest by the already-marginalised, and that when it comes to young people in particular, this approach may be counter-productive. In particular, we know all too well that imprisonment of young people is likely to lead those young people into a cycle of greater marginalisation and recidivism. Imprisonment of young people in particular should be a last resort.
I have to share with you some of the things I’ve seen in Broome over the last couple of days. It’s a tourist paradise but I fear for many of the people who actually live in Broome, it is less than a paradise, and that’s particularly so for the Indigenous community.
To learn for example that the number of police at the Broome Police Station has increased from 24 to 40 in the last decade, with scarcely any increase in the population of Broome, tells you that something might be going on there. One of the people who I spoke to who works with Indigenous youth and is trying to develop criminal justice diversion programs, described the police as being in a state of war with young Indigenous people in Broome. I’m not going to say that he’s right, but just to be told that – for there even to be a basis for that to be said – is something that was pretty startling. To learn that curfew conditions are imposed as a matter of course, on the granting of bail in Broome - which leads to in very many cases, breach of bail and immediate incarceration, often of young people with the police making 2 and 3am visits to a young person’s home to see whether they have breached a curfew, for that to be included as a condition of their bail, tells me something about the attitude of the police to the way they are administering justice.
The impact of mandatory sentencing, and I had account after account of the impact of mandatory sentencing laws here in Western Australia, which have recently been upped in their stringency, because there is now a ‘three strikes’ law applying to young people in Western Australia, you can be charged over the course of two days or three days with three separate charges and by the time you come before the court you have had your three strikes and the Magistrate does not have the option of a diversion from a custodial sentence. That’s all that is left under the current law in Western Australia. You can imagine the frustration that is felt by the people in Broome who would wish to see different options being brought into the criminal justice system in particular in relation to youth justice.
And the lack of funding – this is something not news to anyone in this room – but to be brought up against it – to hear directly, which is why I go to visit CLCs and Aboriginal Legal Centres. To hear directly from the Aboriginal Legal Service in Broome that they have only two solicitors, that they are handling a monstrous caseload, which is the same for the Community Legal Service in Broome, and they are also working under a crippling case load. The ALS told me they are working on as many as 300 active matters on average – and with two lawyers.
In his evidence to a Senate Committee inquiry on 4 August last year Peter Collins, Director of Legal Services for ALS WA said in his evidence:
“If you go to Broome, the ALS in Broome employs two lawyers—we used to employ three, but we have lost a lawyer because of funding constraints… The two lawyers in the ALS office in Broome carry on average a monthly file case load of between 400 and 500 cases. They are criminal cases and they are ongoing. They service the court in Broome, a circuit court in Derby, a circuit court in Fitzroy Crossing and circuit courts in Bidyadanga, the Dampier Peninsula and Looma. ALS would do on average between 70 and 90 per cent of those lists, so we are doing the lion's share of the work on a threadbare budget. We do not do any civil work or family law work in that office anymore. We had one-off funding for family lawyers, which was very gratefully accepted, but that has run out and has not been renewed.”
That’s Peter Collins a year ago, and I can say from my visit this week that a year later, things are not any better.
Appearing before the same Senate inquiry, WA Chief Justice Wayne Martin said:
“You would be aware of course that the Productivity Commission in its report on access to justice recommended the immediate injection of $200 million per annum into the legal aid services of this country. When you get the economists telling you that you need to spend money, I think we need to pay attention to their views.
In relation to the criminal area, we are of course all aware that the resources provided to provide legal services in the criminal area have been reduced. Of course it is a matter for executive government to determine what resources are provided for legal assistance, but you cannot have it both ways: you cannot say, 'We want to reduce Aboriginal incarceration' and, at the same time, reduce resourcing to the services that will have the effect of reducing Aboriginal incarceration.”
I wish I could say only that this Government – and the Abbott Government before it, has shown disinterest in improving the parlous state of Indigenous justice in our country. But it is worse than that, the Abbott and Turnbull Governments have shown contempt.
On Friday I am appearing for the second time in court to try to have Senator Brandis release eight months of his ministerial appointments diary. Brandis has refused to even process my request. He was ordered to do so by the Information Commissioner. He refused, and appealed to the Administrative Appeals Tribunal. I thought I would dust off my legal gear and I appeared in that case before Justice Jagot sitting as Deputy President. She ordered Brandis to process my request. He again refused and on the last possible day appealed to the full Federal Court. I will be appearing in that case in Sydney on Friday to argue that appeal.
I mention this to you because the reason why I originally requested that diary was because every time the national leadership of ATSILS would visit Canberra I would meet with them. They would tell me about the shocking impact of the cuts that Brandis had imposed on Indigenous legal services in Australia. And they would tell me that on every visit, Brandis would refuse to meet with them, claiming that he was too busy. I wanted to know what he was so busy with.
It was astonishing to me that for over eight months Brandis would refuse to meet with the heads of one of the three legal services that he is responsible for as Attorney-General, namely the heads of Indigenous legal services. It is even more astonishing to me now that after three years, and with all that is known about the gaps in Indigenous justice, Brandis has still refused all requests for meetings from the national heads of the Aboriginal and Torres Strait Islander Legal Services.
We know just how vital it is that Indigenous communities have access to proper legal services.
It is profoundly disappointing that we must learn and re-learn these lessons, but progress is never inevitable.
We are not immune from backsliding.
The Royal Commission into Black Deaths in Custody made it a key recommendation, for instance, that the Aboriginal Legal Service be notified whenever an Indigenous person is detained. Yet the Custody Notification Service no longer exists here in Western Australia. It has been defunded.
While it is right to be shocked by what has taken place in the Territory, and to be disappointed that we are still grappling with these problems after so many decades, I do believe there is some cause for hope.
There is cause for hope because there is political will to do better.
The Opposition is committed to achieving constitutional recognition, to improving outcomes in Indigenous justice and to closing the gap. I know that these are deeply held commitments for Bill Shorten and all of us in federal Labor. I am confident that, by working in a bipartisan manner with the Government, we will be able to make meaningful progress.
There is also cause for hope because of the strength of Indigenous leadership.
As I said, it is a shame that the Government mishandled the establishment of the Royal Commission into Juvenile Detention in the Northern Territory. It is positive that, as the Opposition suggested, and Aboriginal communities suggested, that an Indigenous Royal Commissioner be appointed. Mick Gooda is an exceptional leader and we should be confident that his work with fellow Commissioner Margaret White will deliver real justice and real change.
I am very pleased that one of the Royal Commissioners of the Deaths in Custody Royal Commission, Patrick Dodson, has now been elected to the Senate. You had the privilege of hearing from Patrick this morning, and I spent much of my time in Broome with the new Senator.
It is an honour to have a leader of Patrick’s standing join the Parliament – there is no doubt he will make an immense contribution and I look forward to working closely with him.
Just to conclude. I said earlier that NACLC conferences are times of celebration, an opportunity to celebrate the best of the community legal movement.
Sadly, of late, each year’s NACLC Conference has also been an occasion to hear about the grave challenges faced by CLCs. I know that many people have and will make presentations, and many of you know already, of what the effect of the funding cliff will be if it comes to pass.
Last time I spoke to you, in Melbourne, I expressed my disappointment with the Government’s attack on CLCs, and my party’s commitment to the place of CLCs in our community and to proper resourcing for legal services more generally.
I am of course frustrated that, given the result in the July 2 election, Labor is unable to deliver as a Labor Government on the commitments we made during the election to CLCs across the nation.
But I want to reassure you that we will continue to fight for CLCs in Opposition.
We will continue to make the case for the important work that you do.
We will pressure the Government to resolve the funding cliff now less than a year off – a cut of unprecedented severity which would do incredible damage to CLCs and to the communities they serve. We’re going to fight for a reversal of those cuts in MYEFO and if that is not successful then we will continue to fight for changes in the 2017 Budget.
Though times are tough, it has been heartening to see CLCs robustly defended by the communities they serve.
It has been encouraging to see the media – national and local – focus on the importance of CLCs’ work and on the challenges posed by funding cuts.
And it has been comforting to see the Government give ground – though not yet enough – in response to that pressure.
Again, I would like to thank you very much for the opportunity to speak to you all once again, and I look forward to continue to working with you in the months and years to come.