Indigenous Law Bulletin
by Camilla Hughes
Top End Women’s Legal Service (‘TEWLS’) is a community legal service based in Darwin. It runs a program funded by the Aboriginal and Torres Strait Islander Service (‘ATSIS’) called the Aboriginal Women’s Outreach Project which provides legal assistance to Indigenous women in the communities of Wadeye, Kunbarllanjnja, Angurugu and Umbakumba, with a priority given to family violence assistance. Eight Community Legal Workers, an Aboriginal Community Development Worker and two lawyers are employed on the project. This is a brief overview of some of the challenges facing family violence legal workers in the remote Northern Territory (‘NT’).
There is a general lack of public and private infrastructure in the communities we visit. For example, Wadeye (also known as Port Keats) where I visit most months is the sixth largest town in the NT, comparable in terms of population to the mining and tourist town Jabiru but without the sealed roads, shopping arcade, petrol stations, fire station, swimming pool, accommodation and so on. In Wadeye there are only three rooms available for temporary accommodation at what is euphemistically called ‘The Motel’. The rooms are generally booked months in advance by visiting trades people and professionals. In the best case scenario, TEWLS would visit Wadeye for a few days every month. But when there is no accommodation we have to fly in/fly out on one day, and cannot get through our client list, or spend time on community legal education or community development.
The lack of infrastructure also means that TEWLS has no office space when we visit communities. We interview clients wherever we can, for example sitting on the ground outside court or under a tree somewhere. That is generally fine, though it can be difficult in the extreme heat of the build up months (October–December) or the rain of the wet season (December–March). More importantly there is sometimes a need for a private or safe place to interview our clients. Sometimes the only safe place to interview clients is in the police station. Basing ourselves at the police station can then give rise to a community perception that we work for the police. As family violence lawyers we work closely with police but are independent of them. Some people will not approach us for assistance if they think we work for the police.
There is a shortage of trained and qualified interpreters in the communities we visit. The NT Aboriginal Interpreter Service is addressing this problem by delivering training but they have only been funded since 2000. Inevitably it will take some time to build up interpreter numbers, especially given the challenges of delivering remote training. Meanwhile, there is competition for the services of certified interpreters especially on court days. TEWLS employ two local women as Community Legal Workers in each of the communities we visit, and some of these workers are certified interpreters. It is not unusual for them to be put under immense pressure on court days to interpret for the police or prosecutors even though they are working for TEWLS. Refusing such a request carries the risk of displeasing the police, prosecutor, or Magistrate intent on churning through a long court list rather than stopping to think of the conflict of interest they are throwing the Community Legal Worker into. A final problem we have with interpreters is that TEWLS was refused funding for Aboriginal interpreters. The Aboriginal Legal Services (ALSs) receive interpreter funding but we do not. This was justified by the Commonwealth Attorney Generals’ Department on the basis that they were prioritizing criminal law. So if you thought it had been well established that family violence was criminal you would be disappointed.
The Magistrates Court circuits around the larger Aboriginal communities usually sit either monthly or quarterly, and less often in some locations. The Court list will be lengthy, with up to hundreds of matters to be heard in one to four days. Inevitably many matters are adjourned in any one month and take a long time to be completed, particularly indictable offences. So the hearing for an aggravated assault may take place two years after the alleged incident. This reality has a couple of implications for a family violence service such as TEWLS. It may be difficult for the victims and witnesses to give evidence so long after the event. In particular, it is difficult for people who do not generally use clocks, watches, calendars or diaries to be precise about dates and times especially a couple of years after the event. Also, for women living with ongoing family violence it is difficult to recall the precise details of one particular incident of violence a long time after the event. Any competent defence lawyer can make short work of such evidence.
In family violence cases the injured female will generally be the sole or key witness. However, the prosecutor facing the pressure of the long court list may not have time or make time to even meet the witness let alone get to basics such advising about the court layout or procedure, going through the evidence, arranging an interpreter or arranging vulnerable witness facilities. The remote courtroom will generally have no vulnerable witness facilities, which is a problem. However, these are possibilities which could be explored, for example a makeshift screen between the witness and accused could be explored. The NT Office of the Director of Public Prosecutions has an excellent Victim Support Unit with Indigenous and non-Indigenous staff who travel extensively, but are not sufficiently resourced to support the work of the prosecutors in remote courts on most circuits.
The ALSs also bear the pressure of the long court lists and the high costs of providing remote legal assistance. Based on my observations I would say the ALSs in general provide an efficient and quality service to their remote clients for the funding they receive, which is inadequate. The difficulty they face in assisting their clients in family violence matters is that for obvious reasons of professional ethics they are unable to represent both parties in a family violence matter. The ATSIC has responded to this dilemma by funding Aboriginal Family Violence Legal Prevention Units (FVLPUs). We are fortunate to have three FVLPUs in the NT but there are still big gaps in coverage. TEWLS is funded under this program and there are units in Katherine and Alice Springs There needs to be FVLPUs working alongside the Aboriginal Legal Services wherever Indigenous communities are dealing with family violence.
Police training has improved but there is room for further improvement. In our experience police too often appear to lack adequate understanding of the dynamics of family violence. This causes frustration for them and a lot of problems for the communites they are based in.
Another problem we face is the general lack of support and programs for families experiencing violence in remote communities. There is no counseling, mediation, or perpetrator programs such as anger management. Substance abuse programs are few and far between. There is no short or long term emergency accommodation. This also reduces options available for appropriate sentencing. The members of Wadeye Palngun Wurnangat (the Women’s Association) told us this year they do not want women and children flown out to shelters in town and they do not want men sent to prison. On the other hand it would not be easy for Wadeye or any community to deal with violent offenders themselves if these options were removed. Government needs to engage with communities over these issues. Possibilities for greater community involvement in the process of sentencing, for example circle sentencing, need to be explored.
Steps are being taken in various ways to address the above problems. Progress is slow and uneven but we hope it continues. TEWLS would like to applaud the stronger stance against violence being taken in the last couple of years by governments, the legal system and most significantly by Aboriginal leaders and communities themselves.
Camilla Hughes is the Principal Solicitor at Top End Women’s Legal Service.