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

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 There are, however, circumstances in which the desire to be efficient is superseded by a competing objective – the desire to create a social or public "good".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".

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.

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.

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.