Aboriginal Law Bulletin
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by Pamela Ditton
The Harkins Inquiry Report has been a long time coming, so people involved with the Aboriginal Legal Services have been waiting to read its recommendations and commentaries.
Now that it is completed, yet hard to gate copy of, the AboriginalLB invited Pamela Ditton to review it. Pamela Ditton is well suited for such an undertaking having worked as a solicitor for the Central Australian Aboriginal Legal Aid Service from 1977 to 1984. Since then she has run her own legal practise in Alice Springs and is presently studying for a Graduate Diploma in Public Law at ANU.
Pamela Ditton writes;
In 1983 the Minister for Aboriginal Affairs[1] asked Harkins[2] to conduct an inquiry into specific aspects of the Aboriginal Legal Services’ operations.
His Report is dated October 1985. Copies of its very limited print run have been sent to each ALS, Commonwealth and State Legal Aid bodies and all the Attorneys-General. That leaves very few additional copies available for the public, so this review will attempt to summarise its key aspects as well as make a few comments.
To-establish effective role definitions and co-ordination among the Aboriginal Legal Services and the other legal aid agencies in terms of
1. 'the respective roles and responsibilities of Aboriginal Legal Services and other Australian Government. State, Territory and private legal assistance program'
2. 'means of improving co-ordination and cooperation among these agencies to ensure that Aboriginals requiring legal assistance can readily obtain it'
3. 'the resources-necessary to enable Aboriginal Legal Services to provide a full and adequate legal service for Aboriginals in the area of their responsibility.'
The Harkins Inquiry comes after the 1980 Report on Aboriginal Legal Aid made by the House of Representatives Standing Committee on Aboriginal Affairs[3] which. was generally supportive of the ALS's[4]. Its recommendations were largely accepted by the then government, however many have still not been implemented. Understandably there was a fair amount of suspicion around the ALS's as to why, so soon after the 1980 Report, the Minister needed to conduct a further inquiry. Was there a hidden agenda? Was it to obtain a more critical report that would justify the non-implementation of the costly recommendations in the 1980 Report? Was it to silence those ALS's that had opposed the present government's land rights policy?
Much of this suspicion could have been avoided if the Minister had consulted with the ALS's at the outset and appointed nominees from the ALS's to conduct the inquiry jointly with his nominee, Harkins. Self evaluation is becoming common in funded welfare projects and there is no reason why it should not extend to ALS's. However, if the Minister was determined to obtain a report from a person previously outside the operations of the ALS's. Harkins was a good choice. During the Whitlam era he had been one of the main architects of a progressive Australian Legal Aid Service, the more imaginative, parts of which never got beyond the drawing board.
After briefings from area officers of DAA,[5] Harkins set off on an exhausting journey taking him to every State and Territory in Australia. In Queensland he visited Brisbane, Charleville, Rockhampton, Townsville/ Palm Island, Cairns/ Yarrabah, Thursday Island, Mornington Island, Doomadgee and back to Brisbane again, spending on average two days in each place. The pattern was similar elsewhere. The writer, speaking from her personal experience of his visit to Central Australia, felt that he made a great effort to make himself accessible to all the different interested parties: Aboriginal staff of the .ALS, solicitors, council members, magistrates, people from Aboriginal communities serviced by the ALS and from other Aboriginal community organisations. This was a pleasant change In an area where, all too often, far-reaching reports have been made on the basis of so-called consultations that have tasted at best a couple of hours. Whilst the ALS's may disagree with some of his recommendations, they are perceptive, and generally based on a sound understanding not only of the way the ALS's leaders say they function but also of how their scattered client communities say they work.
The Report consists of three substantial volumes: the first which is the focus of this review, deals with general issues; the second with an analysis of each separate ALS; and the third is an appendix with the 12 page itinerary and copies of the submissions made by the various ALS's during the inquiry.
Harkins faced a problem: how to make objective recommendations without adequate. statistics either from the State and Territory authorities or from the AIS's. The Territory faced the same problem, especially in the area of criminal representation. It recommended that criminal justice statistics should identify Aboriginals. but little progress has been made on this front. A consistent theme in the Harkins Report is the need for the ALS's to keep adequate statistics which it is claimed, is not happening at present and certainly not in a form that allows for any comparability between different ALS's.
Harklns was prepared to take as read, the considerable achievements of ALS's over the past decade and noted that they have been described in many journals. He concentrated on problems that he saw, such as inexperienced solicitors working on their own in remote areas, and others that communities raised with him, such as a lack of community input into ALS's in some areas. The larger ALS's were usually in the hands of a small group or faction. Instances of inefficient management were laid at the door of both executive committees and executive officers.
If Harkins had listed the problems and left the matter there, it would have been at the best unhelpful and at the worst an indictment of ALS's. He does not do that, instead he proceeds to look at the causes of the problems and make some constructive suggestions for their resolution. Some suggestions. such as constitutional changes, would require action by the ALS's, other, such as greatly increased field officer training, will require additional funding to implement.
In each ALS Harkins found himself forced, because of widespread criticism of the way in which they were performing their management role, to examine the workings of the Aboriginal Council. In virtually all cases the Council was constitutionally vested with responsibility for the management of the ALS. It should be noted that as each ALS sprang up from grass-roots initiatives, usually around a decade ago, there is considerable variation in their constitutions and styles of operation. Harkins has accepted that the Aboriginal Councils have a management role and has made recommendations directed towards making it more effective. But he makes it clear that he prefers the model recently adopted by the ALS (WA) where the Aboriginal Council deals with broad policy issues only, the task of running the legal practice, in accordance with determined policy, being left to a properly remunerated, expert executive officer and principal soliicitor.
The report compares the pros and cons of large, often state-wide, ALS's with small regional ALS's.
a) a capacity to support regional offices
b) to pursue issues wider than the region
c) to conduct test cases
a) in practice a total absence of regional self-determination
What has become very clear during this inquiry is that the larger ALS's neither operate from a community base nor are they controlled by communities; there is no effective Input or accountability if self-determination by communities be accepted as the objective, there needs to be greater efforts, not only to implement representative constitutions, but also to effect changes to the delivery of legal services that allow for community involvement in, or control of, regional services.[6]
b) A tendency to a pre-occupation with test cases and political issues.
a) Community based and controlled
a) Often pre-occupied with regional court representation and assistance to individuals or organisations in the region to the exclusion of wider issues.
The Report makes two specific recommendations aimed at ensuring a greater involvement of communities:[7]
a) Restructuring executive councils of large ALS's and establishing regional committees for more effective management and community input. A possible restructuring could be:(i) nomination of council members by regional community organisations or groups rather than election of members at annual general meetings;
(ii) nomination by other Aboriginal organisations;
(iii) other possibilities such as nomination of a member by the Minister for Aboriginal Affairs; and
(iv) the inclusion of the executive officer and the principal solicitor as ex officio on the council.
Harkins realises that the proposal for a ministerial nominee is controversial but he sees it providing a useful input of governmental expertise and a communication link instead of the 'cold war' that he sees as presently existing between ALS's and DAA.
and
b) Establishing separate regional ALS's, where viable and sought by communities, to achieve community control;
Like many of the recommendations throughout the Report this last recommendation requires substantial additional funding to implement. Many of the criticisms of ALS's made to Harkins, particularly by outlying communities, are beyond the power of the ALS's to resolve within their present budgets.
This Report, like the 1980 Report. recognises that the ALS's could benefit from improved communications and the ability to coordinate action. However the establishment of a national organisation is not seen as a priority when compared with the delivery of legal services in the States and Territories, but there is a recommendation for annual conferences, including executive officers and solicitors. The conference could be hosted by ALS's in turn. The writer believes that such meetings are likely to be totally unacceptable to ALS's unless they also include a representative from each ALS's policy making Council.
Fears were expressed that a National ALS Organisation could be dominated by a few dominant, sophisticated individuals from the Eastern States, especially if it had a role in the distribution of DAA funds.
Harkins traced the unsuccessful efforts of NAILSS[8], which was established in 1982, to gain funding and gives the impression that he found little support for such a body. It may well be that Harkins has failed to gauge the strong support from many ALS's for some form of national body. Problems of domination by a small group will only be overcome when a properly funded and constituted body is established.
Quite reasonably the Report says that as the ALS's are conducting a legal professional practice as part of the Australian legal system, they must expect to be judged by outsiders and their own clients by the standards of the profession.
Emphasis is placed on the important role played by the Aboriginal executive officer. Several ALS's have found difficulty in finding applicants with suitable qualifications and experience, particularly as such qualified applicants tend to be attracted by the better salaries and conditions in the public service. A recommendation that affects not only executive officers but also solicitors, legal secretaries and field officers is that they should have the qualifications for the job and be paid on a level similar to that offered by the public service. Another excellent suggestion, that DAA should be encouraged to fund, is that where there is no suitable Aboriginal applicant for a key position, e.g. bookkeeper or executive officer, a non-Aboriginal applicant should be appointed with an Aboriginal understudy. A practical matter not adequately addressed in the Report is the length of time DAA takes to respond to submissions. To take an example, a vacancy for a bookkeeper in an ALS comes up in April and a non-Aboriginal applicant is appointed in May; if the ALS goes through the usual procedure of including an application for funding of the position of an understudy in the forward estimates it will be August the following year before the ALS will know that an additional position has been funded. Then the position will need to be advertised and an appointment made. The delay could easily be around eighteen months. Of course, DAA could short circuit this procedure, but past experience concerning the funding of test cases is not encouraging. There have been cases where at least one ALS, conscious of professional legal responsibilities to enter an appeal within a strict time limit, has proceeded to do so and not waited for a decision on an application to DAA for special funding of the matter as a test case. The ALS was then criticised for pre-empting the decision.
This review cannot cover all the issues examined in the Report. It is not only executive officers that have in places been found to be lacking professionalism, the problem extends to some solicitors. The Report examines the conduct of the legal practice and looks at the quality of legal services, how solicitors are selected, solicitor 'burn out' and makes several, probably uncontroversial, recommendations.
The Report feels that Aboriginal field officers and secretaries with appropriate selection and training and status could play a far more significant role in the delivery of legal services.
With training, field officers could become 'court officers' and 'legal assistants'. A few are already performing this role but many are only acting as liaison officers. The ALS (WA) is considering employing two categories of field officers, 'court officers' and 'liaison officers'. The writer feels, based on - her experience in Central Australia, that Harkins underrates the importance of what he terms 'liaison officers'. They - and there need to be female as well as male field officers, a point not mentioned in the Report - provide the essential link with the community. He recommends the establishment of a training course for field officers leading to a 'paralegal' diploma or certificate that would be recognised by courts of summary jurisdiction. possibly along the lines of a course already run in NSW. Field officers with this qualification should receive a substantial increase in their salary to place them on a level with positions carrying similar responsibilities within the public service.
As a result of holding a very senior position in recent years, Harkins was no doubt supplied with top-notch secretarial support. I suggest that he maybe out of touch with the problems faced by private legal practices in obtaining trained legal secretaries. He compares the competence of ALS secretaries unfavourably with those in a modern legal office. Whether or not this is a fair criticism his recommendation for training in this area is to be welcomed. He points to a programme at Nowra where Aboriginal legal secretaries were trained as understudies by an experienced non-Aboriginal legal secretary and are now highly motivated and proud of newly acquired legal secretarial skills.
The Report concludes that computers should be provided to ALS's for data information and legal professional purposes as part of a co-ordinated development program based on the pilot project developed by the ALS (WA). Personal computers can provide statistics and also significantly improve the efficiency of the ALS's by including an accounting capability, word processing and legal research.
At present the ALS's only have Harkins assessment that the WA pilot project is an appropriate model to be extended, without any suggestion of further consultation with other ALS's. throughout Australia. If there was a National ALS, and if the inquiry had included ALS nominees, then it would be possible for all the different ALS's to make an informed decision on whether to support this recommendation. Obviously there are advantages to the ALS's but possibly even greater advantages to DAA, in obtaining comparable statistics from all the ALS's.
CAALAS[9] has developed its own computerised statistical system and will no doubt be reluctant to abandon it without an adequate opportunity to consider the advantages of another system. There may be other ALS's in a similar position to CAALAS. Harkins is right in emphasising the need for relevant statistics. Funded projects, Such as ALS's, seem to be sitting targets for lengthy data collection forms that various departments claim must be completed in the name of accountability. A question on one such form not so long ago was along the lines. 'Was the case successful?'. What was that meant to mean? Was the client happy with the outcome? Did the client get off? Did the solicitor think it was a fair result?
From the ALS viewpoint the proposal that DAA should be provided with data in magnetic media form and manipulate it themselves, thus relieving the individual ALS's of the burden of responding to requests for hard copy output.is extremely dangerous.[10] The ALS's may quite properly collect far more data than it is necessary or appropriate to give DAA.
It is common knowledge that ALS's provide legal representation for Aboriginals charged with major and minor criminal offences as well as assisting Aboriginals in relation to interrogations and pursuing complaints against the police.
These are Harkins' views on a couple of thorny issues:
a) It is appropriate to brief counsel in matters such as committals for offences such as murder and rape[11]. This is important, as over the years DAA has kept the budget allocation for briefing counsel so unrealistically low that there has been incredible pressure on some ALS solicitors without sufficient experience to tackle such cases. Ono wonders If DAA bureaucrats who consider that all ALS solicitors should be expected to handle such weighty matters would consent to a doctor, two years out of medical school, performing a heart by-pass operation on them?
b) ALS's at times face problems of a conflict - of interest between the instructions given by an individual client and the wishes of the Aboriginal community in which the client lives. Knotty problems arise when one Aboriginal is in conflict with another Aboriginal, especially where Aboriginal women are the victims of domestic violence and the ALS's have tended to act for their menfolk[12]. A far deeper examination of these questions is needed before conclusions can be drawn. If there was a National ALS one role it could perform is to commission Aboriginal controlled research into these issues. At present there is just no real opportunity for ALS's in different areas to share their experiences. It is probable that until recently few ALS's knew of the probably unique arragements for summary hearings on Pitjantjatjara Homelands where different lawyers represent the accused and provide the views of the community.[13]
While the pressures of the criminal practice remain, ALS's should not attempt to conduct on-going civil litigation such as personal injury and compensation claims.[14]
Where ALS's have employed a solicitor specifically to handle civil work he/she has ended up helping out with the frequent crises in the criminal practice. Harkins does not consider that a separate ALS civil practice could recover sufficient costs to be selfsupporting.
These conclusions may well be controversial. This writer largely agrees with them, but would point out that ALS's may have good reason for retaining a small proportion of civil litigation, as when the case may have an 'Aboriginal' element that could best be prepared by the ALS, or the client may be too scared to visit a private solicitor. Unfortunately common attributes of private solicitors' offices are rigid appointment systems, patronising receptionists and alienating decor. The combination of such factors tends to make Aboriginal clients ill at ease, feeling probably correctly, that they are being at the best tolerated in alien territory. Field officers can help overcome these problems, but many clients with good cases have files closed with the notation 'failed to give instructions.'[15]
Even when an ALS briefs out civil matters to a sympathetic private solicitor the ALS solicitor often still finds him/herself involved in time consuming tasks such as preparing answers to interrogatories where the private solicitor does not have the community contacts to obtain the information. Trained field officers could help with these tasks - but DAA must recognise when considering staffing levels that substantial ALS solicitor time will continue to be spend in handling civil matters that have been briefed out.
The emphasis is on rationalisation of services so that where it is appropriate for matters to be referred to another agency, be it legal or welfare, that Course should be adopted. Every rule has its exceptions and Harkins did not want to discourage individual ALS's that have developed valuable ancillary services such as financial counselling.
There are many instances of constructive co-operation between ALS's and general legal aid agencies. The Report considers that more could be done by some ALS's without in any way threatening their continued separate existence. The detailed recommendations are contained in the sections on each individual ALS.
A nominal service fee per case should not be imposed because it would hinder accessibility; it would be uneconomic to administer, and it would be impractical in criminal matters.
To avoid significant ALS resources being absorbed in matters on behalf of Aboriginal clients who are able to afford all or part of the cost, to the detriment of disadvantaged clients, consideration should be given to the introduction of a means test, with provision for contributions. limited to substantial or costly matters, including litigious matters and non-litigious matters such as conveyancing and probate.[16]
Congratulations! Harkins has spared the overworked ALS's yet another round of arguments against the immorality and futility of imposing a general means test.
As Harkins' terms of reference were limited to specific aspects of role definition and co-ordination among Aboriginal Legal Services and the other legal aid agencies, it was not his place to chronicle the considerable achievements of Aboriginal Legal Services.
Some recommendations would lessen the cost of ALS's, but increase the number of applications for aid to other legal aid agencies. Although this would lessen the pressure on the Aboriginal vote" it would do little to reduce the ultimate cost to the taxpayer. Many others would require substantial additional funding to implement, some are purely organisational.
He makes 179 separate recommendations, some are in general terms, such as a need for improved statistics, while others are specific to a particular ALS, e.g. that in NSW the ALS' solicitors should instruct Public Defenders or assigned counsel in major criminal trials. Many of the general recommendations cover matters that ALS's have been seeking for sometime ,e.g. funding for attending seminars and refresher courses. and are unlikely to be controversial. ALS's can now wave two prestigious Reports at DAA in support of submissions for additional funding rather than just one. A few of the specific recommendations, such as the one mentioned above, relating to criminal trials in NSW are likely to be controversial. No doubt each ALS will be studying its section of the Report and where necessary responding to the Minister.[17] They could also consider publishing copies of any such responses in this Bulletin.
The whole tenor of the Report is that the delivery of legal services to Aboriginals will be improved if a greater use is made of the private profession and other legal aid agencies. In each specific instance where this is recommended Harkins explains why he considers it to be advantageous. It is implicit that it is not intended as a method of scaling down the present ALS's. The danger is that if a government was bent on whittling down ALS's, it could ignore the spirit of the Report and, by over zealously applying these particular recommendations while ignoring the rest, reduce ALS's to offices for criminal duty solicitor work and referrals.
The Minister has decided to pursue recommendation 3 and has not year made a decision on the others.[18] Recommendation 3 covers: restructuring executive councils of large ALS's; establishing some separate regional ALS' s; retention by communities of firms of solicitors with field officer liaison or ALS's to retain private firms with field officer liaison as an alternative to establishing branch offices; utilising the services of other legal aid agencies in routine and specialist areas such as family law and training field officers for the role of working with solicitors in private firms and other legal aid agencies.
This review is being written shortly before the budget and every day the press is forecasting cuts in the welfare sector. The Report has not attempted to cost is many recommendations. but they are clearly not cheap. There is insufficient information available to compare the cost per case of legal services delivered by the ALS's with those delivered by the private legal profession and other legal aid agencies,[19] and it should not be assumed that even if the major recommendations are implemented that the ALS's are an expensive way of delivering legal services. Even if costing did show the ALS's to cost more it would not be comparing like with like. An apt analogy is the Commonwealth Supported Accommodation Assistance Programme which funds projects such as women's refuges. That programme accepts that women coming to a refuge need various support services as well as a bed, and is funded on that basis. Women's refuges are not judged by comparing their per night bed cost with the cost of emergency accommodation provided by Housing Departments. The reasons why Aboriginals coming in contact with the European introduced legal system need support should not need spelling out in this Bulletin.
[1] The Minister-TM Hon. Clyde Holding, MP. Minister for Aboriginal Affairs.
[2] Harkins- Joseph P. Harkins, LLB, BEc, former Deputy Chairman of the Commonwealth Legal Aid Commission and the former Director of the Australian Legal Aid Office.
[3] 1980 Report -House of Repreaentatives Stand ing Committee on Aboriginal Affairs, Report on Aboriginal Legal Aid, 1980.
[4] ALS - Aboriglnal Legal Service.
[5] DAA - Department of Aboriginal Affairs.
[6] . Harkins Report 4.13.
[7] Harkins Report 4.61.
[8] National Aboriginal and Islanders Legal Service Secretariat.
[9] Central Australian Aboriginal Legal Aid Service.
[10] Harkins Report 6.40.
[11] Harkins Report 8.14.
[12] ID 8.20 – 8.26.
[13] Richard Bradshaw 'Community Representation in Criminal Proceedings' in Legal Services Bulletin Vol. 11, No.3, June 1986. p.111.
[14] Harkins Report 8.58.
[15] The writer disagrees with the optimism of the conclusion drawn by Harklns Report at the end of 9.33.
[16] Harkins Report 10.13.
[17] So far none of the ALS's have responded to the Minister; Conversation, 29 July 1986 with Mike Dillon, Minister for Aboriginal Affairs Senior Private Secretary.
[18] Conversation, 29 July 1986 with Mike Dillon, Minister for Aboriginal Affairs, Senior Private Secretary.
[19] Forwards by R. Else-Mitchell. Chairman of the then Commonwealth Legal Aid Council to - Legal Aid Cost Comparison - Salaried and Private Lawyers, by G. G. Meredith, AGPS, 1983.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1986/48.html