Promote access to justice for Indigenous Australians PDF

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LLB 468 ETHICS AND PROFESSIONAL RESPONSIBILITY 1893 Words

By implementing applied approaches, can Lawyers and the Legal Profession adequately promote access to justice for Indigenous Australians and effectively achieve substantive justice?

I.

Introduction

The Indigenous Australian community forms a minor part of the Australian population. Nevertheless, they are the most disadvantaged cultural group in our society. 1 In the legal system, Indigenous Australians struggle to access justice for various reasons. This essay will address these reasons as barriers to access justice. It will then evaluate the attempt the legal profession and lawyers make to promote adequate access to justice. Finally, the implementation of applied approaches will be discussed, in its aim to meet ethical obligations and to achieve substantive justice for Indigenous Australians.2

II.

Access to Justice

The access to justice relevant in this essay, allows equality before the law. This means equal access to the legal system regardless of race, gender, religion or disability. 3 It also allows 1 The Honourable David Malcolm, ‘Equal Opportunity within the Education Context: A Judicial Perspective’ (Annual Memorial Lecture, Curtin University, 2004) 32.

2 Senator Scott Ludlam and Chiara Lawry, ‘Closing the Gap for Indigenous Australians’ (2010) 7(17) Indigenous Law Bulletin 12, 13. 3 Louis Schetzer, Joanna Mullins and Roberto Buonamano, ‘Access to Justice and Legal Needs: A Project to identify legal needs, pathways and barriers for disadvantaged people in NSW’ (Background paper, Law & Justice Foundation of New South Wales, August 2002) 7.

members of the public to access information to educate themselves, in order to make an educated decision about the legal system or legal issues.4 Access to justice exists to allow for a fair and just legal system that reflects transparency.

III.

Barriers to Access Justice

Indigenous Australians face every day barriers in accessing justice. These can range from language barriers, education and literacy issues or even just a general distrust in the legal system. This distrust could be based on how previous members in their family have been treated by the justice system or just what they are advised by fellow Indigenous Australians. A majority of Indigenous Australians forms part of the lower socio economic group. This indicates a major economic disadvantage in all aspects.

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Including access to justice. This

means Indigenous Australians rely on community based legal centres or community legal support.

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However, cuts in funding for community legal centres continues. ATSIC, The

Aboriginal and Torres Strait Islander Commission is a recently abolished body, due to cuts in funding.

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ATSIC played a major role in bridging the gap between the legal system and

Indigenous Australians.8 Another specific Indigenous legal service provider, the Aboriginal and Torres Strait Islander Legal Services (ATSILS) now take on further responsibility to bridge the gap.9 These centres assist in educating Indigenous Australians about the Australian legal system and what their rights are. A major part of the Indigenous community fail to seek justice due to a lack of knowledge about their rights. 10 The existence of these centres and bodies indicates that lawyers and the legal profession aim to assist in promoting fair access to justice for Indigenous Australians. However, due to cuts in funding this effort may slowly start to deteriorate.

The majority of funding from legal centres for indigenous Australians, are directed to criminal matters. A minor portion is for civil and family matters, however native title claims 4 The Honourable Wayne Martin, ‘Access to Justice’ (Eminent Speakers’ series, Notre Dame University, 26 February 2014) 2. 5 Ludlam and Lawry, above n 2. 6 Ibid. 7 Eddie Cubillo, ‘Funding Cuts to Aboriginal and Torres Strait Islander Legal Services: Where is the Justice for our Nation’s first Australians?’ (2014) 8(14) Indigenous Law Bulletin 15, 15. 8 Malcolm, above n 1, 18. 9 Ibid. 10 Ibid. 2

and racial discrimination matters absorb a substantive amount alone. This means that Indigenous Australians rarely have access to justice for general matters, such as civil or family matters, as the rest of the Australian community does. A big part of the Indigenous community rent their homes, which indicates that they may need assistance with tenancy issues.11 Similarly, indigenous art and music has always been susceptible to intellectual property concerns, but as the funding for access to justice is already distributed elsewhere these kinds of disputes take a back seat to those which is seemingly more important.12 The distribution of funds are not entirely in the hands of lawyers or the legal profession. However, lawyers specialising in civil matters should be encouraged to assist in pro bono cases or at a legal clinic. Thus, regardless of where the funds are distributed, assistance is readily available in other areas of the law. However, at the moment lawyers and the legal profession fail to assist in access to justice as ‘the more important’ matters are being seen to first. Referring to the above issues, the lack of funds play a major part in the difficulty indigenous Australians face to access justice.13 Until lawyers and the Legal Profession address this issue they will continue to fail to promote adequate access to justice for Indigenous Australians.

I.

Applied Approaches

There are four approaches to Legal Ethics that can assist in achieving substantive justice. Adversarial advocacy is the traditional conception approach and combines the principle of non-accountability and partisanship. 14 This allows a lawyer to represent their client the way the client would have, if he had the knowledge the lawyer does. However, non-accountability in turn, allows for the lawyer to do so without being morally responsible for the outcome. 15 The next approach is responsible lawyering, which stipulates that a lawyer is a trustee of the legal system and an officer of the court.16 Thus, above all, the lawyer should put public interest first. The third approach is moral activism, which encourages lawyers to use their 11 Chris Cunneen, ‘Access to Justice: Assessing the Civil and Family Law Needs of Aboriginal and Torres Strait Islander People in Australia’ (National Access to Justice and Pro Bono Conference, 2010) 7. 12 Ibid. 13 Schetzer, Mullins and Buonamano, above n 3, 30. 14 David Luban, Lawyers and Justice: An Ethical Study (1988) 7. 15 Christine Parker, ‘A Critical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’ (2004) 30(1) Monash University Law Review 49, 57. 16 Ibid.

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position to improve justice, through law reform, public interest lawyering and client counselling.17 The last approach is ethics of care. This approach encourages relational lawyering, where the nurturing of relationships and the responsibility to people and communities should guide lawyers.18

II.

Assessing the applied approaches

Adversarial advocacy

Adversarial advocacy promotes a lawyers’ duty to advocate a client’s interests as vigorously as possible within the restrictions of the law. 19 This approach reassures a lawyer that as long as they represent their client as vigorously as possible the justice system will ensure the right outcome will prevail. This approach may promote lawyers choosing clients that cannot afford representation, or those who are discriminated against.20 The adversarial advocacy approach encourages lawyers to represent their clients without discrimination.21 In this sense, adversarial advocacy can assist in meeting ethical obligations and promoting substantive justice for Indigenous Australians. This approach motivates lawyers to represent those that may miss out on representation due to their lack of funds. 22 One of the biggest barriers faced by Indigenous Australians accessing the legal system is the lack of funds. This approach can encourage more lawyers in assisting this underrepresented group of individuals. In contrast, second aspect of adversarial advocacy is non-accountability. This means the lawyer is not morally responsible for the outcome of the case.23 However, the nonaccountability aspect was only introduced to encourage lawyers to take on matters they generally would not, due to being morally responsible.24 Therefore, if a lawyer follows this approach and advocates a client’s interests as vigorously as the law will allow it can only benefit Indigenous Australians as it would increase representation.

17 Ibid. 18 Ibid. 19 Ibid 56. 20 Ibid. 21 Ibid. 22 Ibid 59. 23 Ibid. 24 Ibid 59. 4

Responsible Lawyering

Responsible lawyering suggests that lawyers are officers of the court and trustees of the legal system. Thus, putting public interest above the interest of their client. It could be a constant struggle for the responsible lawyer to balance their duty to their client and their duty to the court.25 In contrast to the adversarial advocate, the responsible lawyer may run the risk of not advocating their client’s interests adequately.26 However, due to the responsible lawyer having public interest at heart, it may benefit Indigenous Australians when the public interest is on par with that of the client. Responsible lawyering alone may not assist in achieving substantive justice.

Moral activism

This approach promotes public interest lawyering and law reform activities, to increase access to justice and change the law and legal institutions to make the law more substantively just.

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This approach can be utilised in achieving substantive justice for Indigenous

Australians. The moral activist, unlike the responsible lawyer, will aim to reform the law if he believes the law isn’t just. A classic example of a moral activist is lawyers who represent clients in native title claims and lawyers that do pro bono work. This is the approach that will assist in achieving substantive justice for Indigenous Australians. The major barrier preventing Indigenous Australians from accessing justice is funds. The moral activist looks past that and represent these clients regardless.28 This approach encourages young lawyers to work in community legal centres and big firms to do more pro bono work. This is the approach that will bridge the gap and assist in achieving substantive justice for Indigenous Australians. However, this approach can also harbour those lawyers only interested in public attention. They will only take the significant cases, they ignore the small ones and take those that will rock the boat the most. Some lawyers go to the extent of only seeking law reform cases, where they can influence the law. However, this would be the minority and can also be 25 Ibid 61. 26 Alvin Esau, ‘What Should We Teach? Three Approaches to Professional Responsibility’ in Donald Buckingham et al, Legal Ethics in Canada: Theory and Practice (1996) 178, 178–9. 27 Parker, above n 15, 65. 28 Ibid 66.

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monitored. This approach addresses the major issue of under representation and the lack of funds.

Ethics of care

This approach is also known as relational lawyering. Ethics of care focuses on a lawyer’s responsibility to clients, the community and relationships.

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It is predominantly concerned

with restoring, reconciling and preserving relationships. Another major barrier faced by Indigenous Australians accessing justice, is their distrust in the legal system. Restoring such trust is essential for achieving substantive justice.30 The ethics of care lawyer would aim to restore such trust and preserve the relationship between Indigenous Australians and the Australian Legal system. Ethics of care incorporates a holistic view approach which allows for the introduction of alternative dispute resolution. This keeps Indigenous Australians out of the traditional courts and allows them to resolve disputes without feeling the pressure of the court environment and the costs associated with it. Alternative dispute resolution along with the help of translators can bridge the access to justice gap. Since 1993, the courts have introduced an Aboriginal Community liaison officer to assist in bridging the gap. 31 CrossCultural awareness programmes have also been introduced. Along with the Aboriginal Bench book for Western Australian Courts which encourages confidence in the legal system and assists the courts in remaining sensitive to community concerns and Human rights issues. Similarly, community legal centres have introduced traditional aboriginal learning styles in an attempt to further educate Indigenous Australians of their rights, and consequently restoring their trust in the legal system.32

These approaches appear extreme when broken down into categories. However, these approaches were not designed to be applied individually. They are to be used in conjunction with each other. Adversarial advocacy alone will not assist in achieving substantive justice. However, incorporating the extreme focus on the client and vigorous advocating, with the

29 Parker, above n 15, 68. 30 Ludlam and Lawry, above n 2, 13. 31 Malcolm, above n 1, 32. 32 Ibid. 6

reform principles from moral activism and the focus on restoring relationships from the ethics of care approach, allows for the perfect combination to achieve substantive justice.

III.

Conclusion

Bridging the gap between Indigenous Australians and the legal system is a mission many has aimed to fulfil. In recent years, more than ever before members of the judiciary are striving to close the gap and aid in providing Indigenous people easier access to justice. 33 Unfortunately, despite efforts by various individuals, lawyers and the Legal Profession continue to fail in their attempt to provide a reasonable level of access of justice to Indigenous Australians. Indigenous Australians continue to lack the resources and capacity to access justice.34 With the aid of applied approaches lawyers and the legal profession can aim to achieve substantive justice for Indigenous Australians. These approaches are designed to be used in conjunction with one another. A strong presence of moral activism and ethics of care will allow for more access to justice for Indigenous Australians, and assist in restoring their lack of trust in the legal system. Consequently, applying these approaches can bring us closer to achieving substantive justice for Indigenous Australians.

BIBLIOGRAPHY A Articles/Books/Reports

33 Malcolm, above n 1, 29. 34 Melanie Schwartz, Fiona Allison, and Chris Cunneen, ‘The civil and family law needs of Indigenous people in Victoria’ (Report, Australian Indigenous Legal Needs Project, 2013) 86.

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Cubillo, Eddie, ‘Funding Cuts to Aboriginal and Torres Straight Islander Legal Services: Where is the Justice for Our Nation’s First Australians?’ (2014) 8(14) Indigenous Law Bulletin 15

Cunneen, Chris, Fiona Allison, and Melanie Schwartz ‘Access to Justice for Aboriginal People in the Northern Territory’ (2014) 49(2) Australian Journal of Social Issues 219

Esau, Alvin, ‘What Should We Teach? Three Approaches to Professional Responsibility’ (1996) Legal Ethics in Canada: Theory and Practice 178

Luban, David, ‘Lawyers and Justice: An Ethical Study’ (1988) 7

Ludlam, Scott and Chiara Lawry, ‘Closing the Gap for Indigenous Australians’ (2010) 7(17) Indigenous Law Bulletin 12

Martin, Wayne, ‘Access to Justice’ (Eminent Speakers’ Series, Notre Dame University, 26 February 2014)

McKinnon, Gemma, ‘Administrative Law’ (2017) 91 Australian Law Journal 386, 387 Parker, Christine, ‘A Critical Morality for Lawyers: Four Approaches to Lawyers’ Ethics’ (2004) 30(1) Monash University Law Review 49

Schetzer, Louis, Joanna Mullins, and Roberto Buonamano, ‘Access to Justice and Legal Needs: A project to identify legal needs, pathways and barriers for disadvantaged people in NSW’ (Background paper, Law & Justice Foundation of New South Wales, August 2002)

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