Indigenous Law Bulletin
by Rowena Medland
There has been a great deal of recent discussion about violence in Indigenous communities. It is stated that violence is widespread within Indigenous communities, and is disproportionately high in comparison to non-Indigenous violence. Whilst this article does not refute the impact of family violence on all members of the community, it does contend that Indigenous women and children bear the greatest brunt of family violence. This article will explore difficulties that face Indigenous women of Cape York trying to access legal, social and educational support in relation to family violence. Difficulties such as limited resources, pressure from perpetrators, and the lack of direct contact with legal and support services contribute to the greater inaccessibility of justice for Indigenous women in Cape York. This in turn creates a sense of ‘re-victimisation’ where victims of violence become further oppressed and disadvantaged due to the factors outlined above.
Studies have found that in some areas, Indigenous women are 45 times more likely to experience violence than non-Indigenous women and 10 times more likely to die as a result. However, Schmider and Nancarrow point out that care must be taken to identify if statistics and studies refer to a national, state/territory or local representation of the population. Statistics based on local or regional studies can be inappropriately applied to include wider region groups – or the Indigenous population as a whole – resulting in inaccurate portrayals. There are over 200 Indigenous language or tribal groups within Australia, and individual and collective experiences within language or regional groups can vary significantly. Indigenous women who reside in a remote, regional Aboriginal community may experience and interpret definitions of family violence differently to women who live in urban centres.
Cape York is situated in the most northeastern part of Queensland, stretching from the tip of the mainland down to Wujal Wujal Aboriginal community (three hours’ drive north of Cairns) and from the Gulf of Carpentaria across to the Coral Sea. Violence is said to affect up to 90 per cent of families living on DOGIT (Deed of Grant in Trust) communities, many of which are situated in Cape York. Although there is never an excuse for violence, the Indigenous peoples of Cape York have historically experienced social and legal injustices that have contributed to the increased violence experienced within contemporary society. These injustices may include, but are not limited to, marginalisation, dispossession, ingrained poverty, loss of land and traditional culture and the breakdown of community kinship systems and Indigenous law.
The term ‘family violence’ is increasingly used to describe violence in Indigenous communities as the term ‘domestic violence’ implies a narrower definition of violence between two people in a spousal-like relationship. Family violence in Indigenous communities is recognised as violence perpetrated by and against a range of family members, including grandparents, parents, adult children, aunts, uncles and siblings.
In order for a domestic violence protection order to be granted in Queensland, section 20(1) of the Domestic and Family Violence Protection Act 1989 (Qld) (‘the Act’) provides that the victim, otherwise known as the aggrieved, must establish that;
a) a relationship as defined under the Act exists, and;
b) that an act of domestic violence has occurred and is likely to occur in the future.
The Act has attempted to accommodate Indigenous concepts of ‘family’ by broadening the definition of ‘family relationship or relative’ in stating that ‘the concept of a relative may be wider than is ordinarily understood.’ Although the onus is on the victim to prove that a family relationship exists, it provides Indigenous women with the opportunity to gain legal protection against family violence perpetrators who may be distant relations, current or even ex-partners of extended family and so forth.
At present, there are no permanent, ‘on-the-ground’ legal services that provide information, advice or representation to Indigenous women in relation to family violence in Cape York. Any legal service that currently assists Indigenous victims is based in Cairns or Townsville, and assistance is provided via telephone or on a fly-in-fly-out basis.
The Cape York Family Violence Prevention Legal Unit (‘Cape York FVPLU’), funded by the Federal Attorney-General’s Department, provides legal, social and emotional information, advice and representation to victims of family violence and sexual assault and attends monthly Magistrate’s Court circuits in Cape York. The service also provides a 24-hour toll free phone number for victims. Further, a memorandum of agreement was established in 2004 between the Cape York FVPLU and the Queensland Police Service in order to provide effective and collaborative support and assistance to victims of family violence in Cape York. The agreement provides a process through which a police officer who has attended a family violence incident can refer the victim/s to the Cape York FVPLU for crisis counseling or legal advice.
The Integrated Indigenous Strategy Unit of Legal Aid Queensland provides legal assistance to victims of family violence and sexual assault, and representation of victims seeking criminal compensation. The Unit visits Cape York communities and Thursday Island (in the Torres Strait) at least twice a year, providing information and advice to victims of family violence as required. Grants of aid are available for legal representation in family violence matters if necessary. Due to lengthy time spans between visits, the Integrated Indigenous Strategy Unit started trialing four target areas on a monthly basis in October 2007.
North Queensland Women’s Legal Service, based in Cairns, and the Indigenous Women’s Legal Unit, based in Townsville, provide legal advice via a toll free phone number but cannot deal adequately with assistance and representation due to limited funding. It has been noted that both services rarely receive calls from Indigenous women in Cape York. If they do, the women are referred on to other services where appropriate (according to discussions between both services).
One of the major difficulties that confront Cape York’s Indigenous women needing immediate family violence legal or emotional support is accessibility of telephones. Only a small number of households have telephones connected and public phones in communities are often in a state of disrepair. There are few public telephones situated in each community and they may be a substantial distance from where an incident of family violence occurs.
The Cape York Justice Study found that the lack of police presence and resources further exacerbates difficulties that Indigenous women face in relation to gaining assistance as victims of family violence. At present, there are not enough officers stationed in Cape York communities to cover a 24-hour shift period. It is usually after-hours that the majority of family violence incidents occur. Even if an Indigenous woman is able to access a telephone to call for police assistance, the after-hours number diverts to Cairns Police Station, hundreds of kilometres away.
To date, some Indigenous communities in Cape York do not have a permanent police presence in the community. For example, western Cape York Aboriginal communities Napranum and Mapoon rely on the police stationed at Weipa to enforce the law. Napranum is a 15-minute drive from Weipa, while Mapoon is an hour’s drive away, on an unsealed road. An informant to the Aboriginal and Torres Strait Islander Women’s Task Force on Violence states that
many women were concerned that the police were ignoring their calls for help and this was seen as increasing their risk of serious harm.
Although this article is not trying to state that police are ignoring women’s calls for help, it is important to note that there can be significant time delays before police are able to assist victims; whether this mean assistance a few hours after an incident, or even the following day.
The Cape York FVPLU and Legal Aid Queensland are currently the only legal services that physically attend the communities in Cape York on a regular basis to provide legal information, advice and representation to victims. Although this is better than not having any service available to Indigenous women in Cape York at all, the problem is that there is often a substantial time delay between when a victim contacts the service and when face-to-face contact can be made and legal representation provided at court.
This time delay, the remoteness of communities and lack of immediate assistance often enables the perpetrator or the perpetrator’s family to apply pressure or guilt to the woman for seeking initial assistance or advice. The Aboriginal and Torres Strait Islander Women’s Task Force on Violence found that ‘sometimes women have no choice other than to stay with their partners, even at the risk of their lives.’ Isolation and the lack of immediate legal or emotional support may give the woman a period of a few days or even a few weeks to change her mind (or be coerced into changing her mind) about seeking further assistance and protection. Overcrowding of houses is a contributing issue that also affects Indigenous women facing family violence. Even if a woman decides to leave a relationship, housing options are extremely limited, with individuals and families remaining on waiting lists for years.
Evidence reveals that family violence within Cape York’s Aboriginal communities is all encompassing and severely affects women and children. Limited resources, pressure from perpetrators and the lack of direct contact with legal and support services contributes to the fact that the extent of violence against Indigenous women in Cape York is underestimated. It is imperative that open lines of communication are maintained between community members, government services and non-government organisations in order to avoid duplication and to fill gaps in service provision where appropriate.
At the end of the day, when service providers have flown back to Cairns or similar regional centres, it is the Indigenous women and children who live in Cape York who suffer the effects of family violence. Until the day that each community in Cape York has ‘on-the-ground’ legal, social and educational support services for victims, services need to be as flexible and responsive as possible in order to assist and support Indigenous women. Effective prevention and intervention needs to recognise past hurts and involve healing of the whole community in order to address the legal and social issues that face Indigenous people dealing with family violence in Cape York.
Rowena Medland is one of two solicitors employed by the Cape York Family Violence Prevention Legal Unit.
 Aboriginal and Torres Strait Islander Women’s Task Force on Violence, Aboriginal and Torres Strait Islander Women’s Task Force on Violence Report (1999) ix.
 Judy Atkinson ‘A Nation is Not Conquered’ (1996) 2(80) Aboriginal Law Bulletin 40, cited by Partnerships Against Domestic Violence, Projects with Indigenous Communities: Key Findings (2000).
 Joann Schmider and Heather Nancarrow, Aboriginal and Torres Strait Islander Family Violence, Facts and Figures, (Fact Sheet of the Queensland Centre for Domestic and Family Violence Research) (2007) 1.
 David Horton, The Encyclopaedia of Aboriginal Australia (1994).
 Queensland Domestic Violence Task Force, Beyond These Walls - Report of the Queensland Domestic Violence Task Force to the Minister for Family Services and Welfare Housing (1988).
 Ibid; National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing them home (1997); Report of the Commission Inquiry into Abuse of Children in Queensland Institutions (Forde Inquiry) (1999).
 Cape York Justice Study Report (2001).
 Domestic and Family Violence Protection Act 1989 (Qld), s 12B(4).
 Cape York Justice Study Report, above n 7, 195
 Ibid, 98.
 Ibid, 181.
 Ibid, 180.
 Aboriginal and Torres Strait Islander Women’s Task Force on Violence, above n 1.